The Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2011 (revoked)

Citation, commencement and extent S

1.—(1) These Regulations may be cited as the Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2011 and come into force on 1st January 2012.

(2) These Regulations extend to Scotland only.

Interpretation S

2.—(1) In these Regulations—

“authorised person” means any person authorised by the Scottish Ministers to act in matters arising under these Regulations, the Council Regulation or the Commission Regulation;

“the Commission Regulation” means Commission Regulation (EC) No 1122/2009 laying down detailed rules for the implementation of Council Regulation (EC) No 73/2009 as regards cross-compliance, modulation and the integrated administration and control system, under the direct support schemes for farmers provided for that Regulation, as well as for the implementation of Council Regulation (EC) No 1234/2007 as regards cross-compliance under the support scheme provided for the wine sector M1 , as amended from time to time;

“control report” means a control report pursuant to Article 54 of the Commission Regulation, and “provisional control report” is a draft control report detailing all the information required in a control report;

“the Council Regulation” means Council Regulation (EC) No 73/2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006 and (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003 M2 , as amended from time to time;

“Council Regulation 1698/2005” means Council Regulation (EC) No 1698/2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) M3 , as amended from time to time;

“the EIA Agriculture Regulations” means the Environmental Impact Assessment (Agriculture) (Scotland) Regulations 2006 M4 ;

“electronic communication” means an electronic communication as defined in section 15 (general interpretation) of the Electronic Communications Act 2000 M5 , which has been recorded and is consequently capable of being reproduced;

“farmer” has the same meaning as in Article 2(a) of the Council Regulation;

“growing season” means the growing season which ends on or before 15th October in any calendar year;

“holding” has the same meaning as in Article 2(b) of the Council Regulation;

“non-compliance” has the same meaning as in Article 2(36) of the Commission Regulation;

“the Scottish Environment Protection Agency” means the Scottish Environment Protection Agency established under section 20 of the Environment Act 1995 M6 ;

“Scottish Natural Heritage” means Scottish Natural Heritage established under section 1 of the Natural Heritage (Scotland) Act 1991 M7 ; and

“site of special scientific interest” means land notified under section 3(1) or 5(1) (sites of special scientific interest) of the Nature Conservation (Scotland) Act 2004 M8 .

(2) Other expressions used in these Regulations have, unless the context otherwise requires, the meaning they bear in the Council Regulation and the Commission Regulation.

(3) Unless the context otherwise requires, any reference in these Regulations to a numbered paragraph or sub-paragraph is a reference to the paragraph so numbered in the regulation or Schedule to these Regulations, or to the sub-paragraph so numbered in the paragraph, in which that reference occurs.

(4) Except in relation to a management regime, approval or consent under paragraph 10(2), 11(3), 12(2)(a), 14, 15(1) or 16(1) of the Schedule to these Regulations, where this paragraph applies only if the farmer so consents, or has contacted the Scottish Ministers by way of an electronic communication in relation to such a regime, approval or consent, any reference in these Regulations to anything done in writing or produced in written form includes a reference to an electronic communication.

Marginal Citations

M1 OJ L 316, 2.12.2009, p.65, as last amended by Commission Regulation (EU) No 173/2011 (OJ L 49, 24.2.2011, p.16).

M2 OJ L 30, 31.1.2009, p.16, as last amended by Commission Implementing Regulation (EU) No 785/2011 (OJ L 203, 6.8.2011, p.10).

M3 OJ L 277, 21.10.2005, p.1, as last amended by Council Regulation (EC) No 473/2009 (OJ L 144, 9.6.2009, p.3).

M4 S.S.I. 2006/582, amended by S.S.I. 2006/614, 2008/202 and 2010/460.

M5 2000 c.7, relevantly amended by paragraph 158 of Schedule 17 to the Communications Act 2003 (c.21).

M6 1995 c.25.

M7 1991 c.28; section 1 was amended by the Public Services Reform (Scotland) Act 2010 (asp 8), schedule 1, paragraph 2(b).

M8 2004 asp 6.

Designation S

3.  The Scottish Ministers shall be the competent national authority for the purposes of providing the list of statutory management requirements and good agricultural and environmental condition to be respected, as required by Article 4(2) of the Council Regulation.

Good agricultural and environmental condition S

4.—(1) The standards of good agricultural and environmental condition set out in the Schedule to these Regulations apply as minimum requirements for the purpose of Article 6 of, and Annex III to, the Council Regulation.

(2) The land must be maintained in a condition that would make it reasonably practicable for an authorised person (and any person who may accompany an authorised person) to exercise any of the powers specified in regulation 7 as necessary to ascertain whether any of the statutory management requirements under Article 4 of, and Annex II to, the Council Regulation or any requirement of this regulation or the Schedule to these Regulations has been complied with.

Permanent pasture S

5.—(1) If it is established that the ratio mentioned in Article 3(1) of the Commission Regulation is decreasing, the Scottish Ministers must prohibit a farmer from converting land under permanent pasture, in accordance with Article 4(1) of the Commission Regulation.

(2) If it is established that the obligation in Article 3(2) of the Commission Regulation cannot be ensured the Scottish Ministers must require a farmer to re-convert land to permanent pasture in accordance with Article 4(2) of the Commission Regulation.

(3) In this regulation, “permanent pasture” has the meaning given to it in Article 2(2) of the Commission Regulation.

Competent control authority S

6.—(1) The Scottish Ministers are designated as the competent control authority for the purposes of Article 48 of the Commission Regulation.

(2) The Scottish Ministers may require the relevant authorities to carry out controls for the purposes of Article 8 and Chapters I and III of Title III of Part II of the Commission Regulation.

(3) The relevant authorities must—

(a) send to the Scottish Ministers a provisional control report; and

(b) for the purposes of Article 70 of the Commission Regulation where a non-compliance is established as a consequence of any kind of checks, notify the Scottish Ministers of any non-compliance established.

(4) The Scottish Ministers must pursuant to Article 54 of the Commission Regulation, establish the final control report and where the Scottish Ministers are not the Paying Agency, send the control report to the Paying Agency.

(5) In this regulation, “the relevant authorities” means—

(a) Scottish Natural Heritage; and

(b) the Scottish Environment Protection Agency.

Powers of authorised persons S

7.—(1) In addition to any existing power of entry an authorised person may exercise any of the powers specified in this regulation for the purpose of—

(a) providing a control report or a provisional control report;

(b) establishing whether there has been a non-compliance; or

(c) ascertaining whether an offence under these Regulations has been or is being committed.

(2) An authorised person may, on producing if so required, a duly authenticated document showing that person's authority, at all reasonable hours enter any land (excluding any premises used only as a dwelling) which is, or which such person has reasonable cause to believe to be, a holding occupied by, or in the possession of, a farmer or employee, agent, contractor or tenant of the farmer.

(3) If a sheriff or justice of the peace, on sworn information in writing, is satisfied that there is reasonable ground for entry into any premises by an authorised person under this regulation and either that—

(a) entry has been refused or a refusal is reasonably expected, and that person has given notice to the occupier of his or her intention to apply for an entry warrant; or

(b) a request for entry, or the giving of such a notice, would defeat the object of entry, or entry is urgently required, or the premises are unoccupied, or the occupier is temporarily absent and it would defeat the object of entry to await the occupier's return,

the sheriff or justice may by signed warrant, valid for a period of no more than one month, authorise that person, together with any person who may accompany him or her by virtue of paragraph (5), to enter the premises, if need be by reasonable force.

(4) An authorised person may—

(a) carry out any inquiries, checks, examinations, measurements and tests;

(b) take any samples;

(c) inspect all or any part of the land farmed, laid fallow or withdrawn from agricultural production by a farmer;

(d) inspect any crops growing on that land or any livestock or any other thing kept on it;

(e) mark any animal or other thing for identification purposes;

(f) have access to, inspect and copy any documents or records (in whatever form they are held) kept relating to matters covered by these Regulations, or remove such records to enable them to be copied;

(g) have access to, inspect and check the operation of, any computer and any associated apparatus or material which is or has been in use in connection with the documents or records; and for this purpose may require any person having charge of, or otherwise concerned with the operation of, the computer, apparatus or material to afford the authorised person such assistance as may reasonably be required and, where a document or record is kept by means of a computer, may require the documents or records to be produced in a form in which they can be taken away;

(h) remove a carcass found on the land for the purpose of carrying out a post-mortem examination on it;

(i) take a photograph of anything on the land; and

(j) remove anything which the authorised person reasonably believes to be evidence of any non- compliance.

(5) An authorised person entering any premises by virtue of this regulation may be accompanied by—

(a) such other persons as the authorised person considers necessary; and

(b) any representative of the European Commission acting for the purposes of the Council Regulation and the Commission Regulation.

(6) If an authorised person enters any unoccupied premises the authorised person must leave them as effectively secured against unauthorised entry as before those premises were entered.

Assistance to authorised persons S

8.—(1) A farmer or any employee, agent, contractor or tenant of a farmer must give an authorised person such assistance as the authorised person may reasonably request so as to enable the authorised person to exercise any power conferred by regulation 7.

(2) Such assistance may include the gathering of livestock and presenting them for inspection in a safe and secure manner.

Offences and penalties S

9.—(1) A person commits of an offence if he or she—

(a) obstructs an authorised person (or a person accompanying an authorised person and acting under the authorised person's instructions) in the exercise of a power conferred by regulation 7;

(b) fails without reasonable excuse to comply with a request made under regulation 8; or

(c) supplies to an authorised person (or person accompanying an authorised person and acting under the authorised person's instructions) any information knowing it to be false or misleading.

(2) Nothing in paragraph (1)(b) is to be construed as requiring any person to answer any question if to do so might incriminate that person.

(3) A person who commits an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Offences by bodies corporate, etc. S

10.—(1) Where—

(a) an offence under these Regulations has been committed by a body corporate or a Scottish partnership or other unincorporated association;

(b) it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of—

(i) a relevant individual; or

(ii) an individual purporting to act in the capacity of a relevant individual,

the individual as well as the body corporate, Scottish partnership or unincorporated association commits the offence and is liable to be proceeded against and punished accordingly.

(2) In paragraph (1), “relevant individual” means—

(a) in relation to a body corporate—

(i) a director, manager, secretary or other similar officer of the body;

(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.

Amendment of the Rural Payments (Appeals) (Scotland) Regulations 2009 S

11.  In paragraph 9 of the Schedule (relevant decisions) to the Rural Payments (Appeals) (Scotland) Regulations 2009 M9 , for “the Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2004”, substitute “ the Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2011 ”.

Marginal Citations

M9 S.S.I. 2009/376, to which there are amendments not relevant to these Regulations.

Revocation S

12.  The following Regulations and Orders are revoked—

(a) the Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2004 M10 ;

(b) regulation 26 of the Common Agricultural Policy Single Farm Payment and Support Schemes (Scotland) Regulations 2005 M11 ;

(c) the Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Amendment Regulations 2007 M12 ;

(d) regulation 2(c) of, and Schedule 3 to, the Common Agricultural Policy (Single Farm Payment and Support Schemes and Cross-Compliance) (Scotland) Amendment Regulations 2008 M13 ;

(e) regulations 15 to 18 of the Common Agricultural Policy (Single Farm Payment and Support Schemes and Cross-Compliance (Scotland) Amendment Regulations 2009 M14 ; and

(f) article 8 of the Public Services Reform (Scotland) Act 2010 (Consequential Modifications) Order 2010 M15 .

Marginal Citations

M10 S.S.I. 2004/518.

M11 S.S.I. 2005/143.

M12 S.S.I. 2007/99.

M13 S.S.I. 2008/184.

M14 S.S.I. 2009/391.

M15 S.S.I. 2010/222.

RICHARD LOCHHEAD

A member of the Scottish Executive

St Andrew's House,

Edinburgh

22nd November 2011