The Official Controls (Agriculture etc.) (Scotland) Regulations 2019

Made: at 2.45 p.m. on 3rd December 2019

Laid before the Scottish Parliament: at 4.30 p.m. on 3rd December 2019

Coming into force: 14th December 2019

The Scottish Ministers make the following Regulations in exercise of powers conferred by section 2(2) of the European Communities Act 1972 and all other powers enabling them to do so.

PART 1 — General

Title, commencement and extent

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• (1) These Regulations may be cited as the Official Controls (Agriculture etc.) (Scotland) Regulations 2019 and come into force on 14 December 2019.

• (2) These Regulations extend to Scotland only.

Interpretation

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• (1) In these Regulations—

• “audit” means an audit of a competent or designated authority for the purposes of Article 6 in relation to any relevant legislation;

• “auditor” means a person carrying out an audit on behalf of a competent authority;

• “designated authority” means an authority designated under regulation 3;

• “enforcement officer” means an officer authorised to enforce the Official Controls Regulation and these Regulations by a competent or designated authority;

• “inspector” in relation to any relevant legislation, means an inspector, veterinary inspector, or other officer authorised by a competent or designated authority to act in Scotland under that legislation;

• “official controls” has the meaning given by Article 2(1);

• “other official activities” has the meaning given by Article 2(2);

• “premises” includes any means of transport;

• “relevant legislation” means ... legislation relating to the areas specified in sub-paragraphs (b), (d), (e) and (f) of Article 1(2);

• “the Official Controls Regulation” means Regulation (EU) 2017/625 of the European Parliament and of the Council of 15 March 2017 on official controls and other official activities performed to ensure the application of feed and food law, rules on animal health and welfare, plant health and plant protection products , and where the context requires it includes a reference to measures in implementing and delegated regulations made under the Official Controls Regulation;

• “Feed and Food Regulations” means the Official Feed and Food Controls (Scotland) Regulations 2009 .

• (2) Unless otherwise provided in this regulation, terms used in these Regulations have the same meaning as they have in the Official Controls Regulation.

• (3) Unless the context otherwise requires, any reference in these Regulations to an “Article” or “Title” are to an Article or Title of the Official Controls Regulation.

Designations of competent and designated authorities

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• (1) The competent authority in respect of the relevant legislation is for the purposes of Article 4—

• (a) to the extent that it has functions in relation to the welfare requirements of animals as the competent authority for the purposes of regulation 3 of the Welfare of Animals at the Time of Killing (Scotland) Regulations 2012 , Food Standards Scotland;

• (b) for all other purposes, the Scottish Ministers.

• (2) Local authorities and food authorities are designated authorities in relation to enforcement functions (other than prosecution) which they exercise under relevant legislation.

• (3) A designated authority must keep written records (which may be in electronic form) of official controls and other official activities that they perform, and such records must include—

• (a) a description of the purpose of the official controls and other official activities;

• (b) the control methods applied;

• (c) any action that the designated authority requires to be taken; and

• (d) the outcome.

• (4) Where non-compliance has been identified by any designated authority through the application of official controls, the operator must be promptly informed of the non-compliance.

• (5) In this regulation—

• (a) “food authority” has in relation to any relevant legislation the same meaning as it has in that legislation, and includes a food authority that is an enforcement authority for the purposes of that legislation; and

• (b) “local authority” has in relation to any relevant legislation the same meaning as it has in that legislation.

Disclosure of information

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The Scottish Ministers or any other designated authority may disclose information to each other and to other competent authorities ... for the purposes of applying these Regulations and the Official Controls Regulation.

PART 2 — Audits and official controls

Powers of auditors

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• (1) An auditor may exercise the powers in this regulation and carry out an audit in accordance with the Official Controls Regulation if so authorised—

• (a) in relation to carrying out an audit of the activities of a designated authority, by the designated authority; or

• (b) in relation to carrying out an audit pursuant to regulation 6(2), by the Scottish Ministers.

• (2) For the purposes of carrying out an audit, an auditor may enter premises to which an inspector has a power of entry under relevant legislation (“audit premises”) as if the auditor were an inspector meeting the criteria for gaining such entry under that relevant legislation.

• (3) An auditor exercising a power of entry may be accompanied by any person whose assistance is reasonably required by the auditor.

• (4) Any person at an audit premises must provide such information as may reasonably be required for the purposes of the audit to an auditor, upon request.

• (5) An auditor may inspect such records as may reasonably be required for the purpose of the audit and may make or require copies to be provided of such records.

• (6) When exercising the powers conferred by this regulation, an auditor must, upon request, produce evidence of authorisation under these Regulations.

• (7) This regulation does not apply where an auditor undertakes an audit in accordance with regulation 7.

Powers of the Scottish Ministers in relation to audits of designated authorities

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• (1) The Scottish Ministers may require a designated authority to provide them with such information by a specified date about any audits it has carried out or undergone or which it plans to carry out or undergo.

• (2) The Scottish Ministers may require an auditor to carry out an audit of a designated authority.

• (3) The designated authority must provide such assistance to that auditor as may reasonably be required in order for the auditor to carry out the audit effectively.

Powers of Food Standards Scotland undertaking audits on behalf of the Scottish Ministers

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• (1) The Scottish Ministers may require Food Standards Scotland to carry out an audit of a competent or designated authority for the purposes of the Official Controls Regulation.

• (2) The audit provisions of the Feed and Food Regulations apply, for the purposes of such an audit, as if—

• (a) the undertaking of the audit were for the purpose referred to in regulations 8(1) and 9(1) of those Regulations; and

• (b) the authority concerned were an enforcement authority to which regulation 7 of those Regulations applied.

• (3) For the purposes of paragraph (2), the audit provisions of the Feed and Food Regulations are—

• (a) regulations 8 and 9(1) to (8) and (10) (as read with regulation 10 of those Regulations); and

• (b) regulation 11 of those Regulations.

• (4) Regulations 17(2), (4) and (5)(c), 18(2) to (9), 19 to 21 and 45 to 50 of the Feed and Food Regulations apply where Food Standards Scotland carry out an audit under this regulation as if the audit were undertaken under those Regulations and enforced or executed by Food Standards Scotland.

PART 3 — Assistance and co-operation under Title IV and recovery of expenses

Duties of designated authorities

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A designated authority must without delay notify the Scottish Ministers or Food Standards Scotland (as appropriate) if it considers that it is unable to undertake action required in any individual case under Title IV (administrative assistance and cooperation), and must provide such information to the Scottish Ministers or Food Standards Scotland as they may reasonably request.

Facilitating assistance and co-operation

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• (1) For the purposes of assisting a competent authority ... as provided for in Article 104, or enabling a competent or designated authority to do so, an inspector may on entering premises or when inspecting records—

• (a) be accompanied by an authorised officer of a competent authority ...;

• (b) show records to such an officer; and

• (c) make, or require the making of, copies of records for such an officer.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) An enforcement officer may require any person to provide them with such assistance, information or facilities as they may reasonably require for the purposes of the execution or enforcement of these Regulations or the Official Controls Regulation.

Recovery of expenses

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• (1) Any expenses incurred by a competent authority or a designated authority in carrying out enforcement activities under these Regulations, or measures under Articles 66, 67, 69 or 138, may be recovered from the relevant operator, and such expenses must be paid on written demand.

• (2) Any unpaid sum under these Regulations may be recovered—

• (a) as a civil debt;

• (b) under an order of the court, on such terms as the court may order.

PART 4 — Enforcement and penalties

Enforcement and prosecution

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• (1) Enforcement of the Official Controls Regulation and these Regulations is the responsibility of the competent authority or a designated authority.

• (2) The Scottish Ministers may direct, in relation to a particular case or cases of a particular description, that these Regulations or the Official Controls Regulation are to be enforced by the Scottish Ministers instead of a designated authority.

Powers of enforcement officers

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• (1) An enforcement officer may—

• (a) make any enquiries, observe any activity or process, and take photographs;

• (b) inspect any article, container, plant, equipment or records of any class which appear to the enforcement officer to be relevant for the purposes of an investigation, and may as reasonably required make or require the making of copies of such records or remove such records;

• (c) mark any item for identification purposes;

• (d) require the production of any label, document or record (in whatever form it is held);

• (e) inspect and take a copy of, or take a copy of an extract from, any label, document or record;

• (f) have access to, and inspect and check the data on, and operation of, any computer or similar device;

• (g) if the enforcement officer has reason to believe that a person is in contravention of these Regulations or the Official Controls Regulation, and that such data may be relevant to the contravention, seize and detain any equipment for the purposes of copying data or (where adequate inspection is impracticable) further inspection;

• (h) if the enforcement officer has reason to believe that a person is in contravention of these Regulations or the Official Controls Regulation, and that certain records may be relevant to the contravention, seize and detain the records.

• (2) An enforcement officer must—

• (a) produce evidence of authorisation when requested to do so;

• (b) as soon as reasonably possible—

• (i) provide to the person appearing to be responsible for any record or equipment removed from any premises a written receipt identifying the items removed; and

• (ii) when no longer required, return anything seized or detained.

Powers of entry

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• (1) An enforcement officer may enter any premises (except any premises used wholly or mainly as a private dwelling) during normal working hours without prior notice, if the officer believes that it is necessary for the purpose of official controls or other official activities under these Regulations or the Official Controls Regulation.

• (2) In circumstances where an enforcement officer is carrying out routine verification checks, notice must be provided before exercising a power of entry to premises during normal working hours.

• (3) The requirement to give notice in paragraph (2) does not apply—

• (a) where reasonable efforts to effect entry have failed;

• (b) where the enforcement officer reasonably believes that giving notice would defeat the object of the entry, including any situation in which notice is not required under Article 9(4); or

• (c) where the enforcement officer has a reasonable suspicion that any provision of these Regulations or the Official Controls Regulation has been contravened.

• (4) An enforcement officer must, if requested to do so, produce a duly authenticated authorisation document.

• (5) A justice of the peace, sheriff or summary sheriff may grant a warrant to permit an enforcement officer to enter any premises, including a dwelling, if necessary by reasonable force, if satisfied on sworn information in writing—

• (a) that there are reasonable grounds to enter the premises for the purpose of enforcing these Regulations or the Official Controls Regulation; and

• (b) that one or more of the conditions in paragraph (6) are met.

• (6) The conditions are—

• (a) that entry to the premises has been, or is likely to be, refused, and notice of the intention to apply for a warrant has been given to the occupier;

• (b) that asking for admission to the premises, or giving such a notice, would defeat the object of the entry;

• (c) that entry is required urgently;

• (d) that the premises are unoccupied or the occupier is temporarily absent.

• (7) A warrant granted under this regulation shall continue in force for a period of one month.

• (8) An enforcement officer entering any premises which are unoccupied, or from which the occupier is temporarily absent, must leave them as effectively secured against unauthorised entry as they were before entry.

• (9) An enforcement officer may—

• (a) be accompanied by such other persons, up to a maximum of three, as the officer considers necessary;

• (b) bring onto the premises such equipment as the officer considers necessary.

Offences and penalties

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• (1) A person is guilty of an offence if without reasonable excuse that person obstructs or causes or permits to be obstructed—

• (a) an auditor;

• (b) an inspector;

• (c) any person who accompanies an auditor or inspector; or

• (d) an enforcement officer.

• (2) For the purposes of paragraph (1), obstruction includes failure by any person—

• (a) to produce records or provide reasonable facilities for copying records; or

• (b) to provide relevant information when requested.

• (3) A person is guilty of an offence if without reasonable excuse that person supplies an auditor, inspector or enforcement officer with information which, in any material particular, is false or misleading.

• (4) A person guilty of an offence under this regulation is liable on summary conviction to a fine not exceeding level 5 on the standard scale, or to imprisonment for a term not exceeding three months, or to both.

Offences by bodies corporate

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• (1) Where—

• (a) an offence under regulation 14 is committed by a body corporate, a Scottish partnership or other unincorporated association; and

• (b) it is shown that the offence was committed with the consent or connivance of an officer, or was attributable to any neglect on the part of the officer,

the officer as well as the body corporate is guilty of the offence, and liable to be proceeded against and punished accordingly.

• (2) If the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts and defaults of a member in connection with any functions of management as if that person were a director of the body.

• (3) “Officer” includes—

• (a) in relation to a body corporate—

• (i) a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity;

• (ii) where the affairs of the body are managed by its members, a member;

• (b) in relation to a Scottish partnership, a partner;

• (c) in relation to an unincorporated association other than a Scottish partnership, a person who is concerned in the management or control of the association.

Time limits for prosecution

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A prosecution for an offence under this Part must begin no later than the earlier of the expiry of—

• (a) three years from the commission of the offence; or

• (b) one year from its discovery by the prosecutor.

PART 5 — Consequential amendments

Amendment to the Foot-and-Mouth Disease (Scotland) Order 2006

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• (1) The Foot-and-Mouth Disease (Scotland) Order 2006 is amended as follows.

• (2) In article 2(1)—

• (a) for the definition of “border inspection post”, substitute—

“border control post” has the same meaning as Article 3(38) of Regulation (EU) 2017/625 of the European Parliament and of the Council on official controls and other official activities performed to ensure the application of feed and food law, rules on animal health and welfare, plant health and plant protection products;