Transposition of laws - community regulations requiring compliance with quality standards for agricultural produce - English legislation validly giving effect to constantly changing community law

Department for Environment, Food and Rural Affairs v ASDA Stores Ltd and Another: HL (Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hobhouse of Woodborough, Lord Millett and Lord Walker of Gestingthorpe): 18 December 2003

The European Communities Act 1972 made provision for, among other things, bringing into force in the UK directly applicable European rules governing standards of quality for fresh horticultural produce.

It did so by inserting sub-section 11(3) into the Agriculture and Horticulture Act 1964, granting a new regulation making power to the minister.

Subsequently, the Grading of Horticultural Produce (Amendment) Regulations 1973 (SI 1973/22) were made, which provided that it was a criminal offence to contravene the community rules.

The defendants were charged with various offences of selling fruit and vegetables in contravention of the community rules.

At the start of the trial, they submitted that the amendments to the 1964 Act had only conferred a power to make regulations bringing into force community rules already existing at the time when the 1972 Act was passed and that, as all the community rules which the defendants were accused of contravening had been made after 1972, the offences were unknown to law.

The district judge accepted that submission and the Divisional Court upheld his decision.

The Department for Environment, Food and Rural Affairs appealed.

Lord Goldsmith QC, Attorney-General, Christopher Vajda QC and George Peretz (instructed by Legal Division, Department for Environment Food and Rural Affairs) for the department; Kenneth Parker QC, Fred Philpott and Jonathan Goulding (instructed by Gregory Rowcliffe Milners) for Asda.

Held, allowing the appeal, that it was abundantly plain as a matter of both language and context that the scope of the new power to make regulations under section 11(3) was not confined to produce falling within community rules existing before the European Communities Act 1972 came into force; that although an offence creating provision had always to be expressed with sufficient clarity and precision, the mechanism chosen by Parliament for implementing community obligations was a matter of legislative choice for Parliament; that Parliament could choose to adopt an approach that did not involve making new implementing regulations whenever community legislation changed; that courts should not approach the interpretation of implementing statutes or regulations as though there were a presumption that they did not embrace future changes in community legislation as there was no such presumption; that, rather, in each case the court was seeking to find, with the assistance of the usual interpretative aids, the intention reasonably to be attributed to Parliament in enacting the relevant legislation or to the minister in making the relevant statutory instrument; and that there was no room for doubt on the proper interpretation of section 11(3) of the 1964 Act and the 1973 regulations.

(WLR)