FOOD PART I GENERAL Citation and commencement 1 This Order may be cited as the Milk (Special Designations) (Scotland) Order 1988, and shall come into force on 1st January 1989. Interpretation 2 1 In this Order unless the context otherwise requires — “the Act of 1949” means the Milk (Special Designations) Act 1949; “approved bactericidal agent” means a chemical agent approved by the Secretary of State; “bulk container” means any container, other than a retail container; “bulk milk” means milk which is not pre-packed; “consumer” means any person to whom milk is supplied and who neither sells it nor uses it in the manufacture of milk products for sale; “dealer” means a person who carries on a business which consists of or comprises the selling of milk but does not include — a holder of a pasteuriser’s licence who sells the milk pasteurised by him by wholesale only, and only at or from the premises where the milk is pasteurised, and who sells no other milk; a holder of a steriliser’s licence who sells the milk sterilised by him by wholesale only, and only at or from the premises where the milk is sterilised, and who sells no other milk; a holder of a licence to treat milk by the ultra high temperature method who sells the milk so treated by him by wholesale only, and only at or from the premises where the milk is so treated, and who sells no other milk; “dealer’s licence” means a licence authorising a dealer to use a special designation in relation to milk sold by him; “dealer’s supplementary licence” means a licence granted to a dealer authorising the use by him of a special designation in relation to milk sold by him by retail in the area of a local authority other than the authority in whose area the premises from which the milk is sold are situated; “existing licence” means a licence which is in force when the holder thereof applies for a licence by way of renewal thereof; “licence” means a licence granted in accordance with the provisions of this Order; “licence held by a retailer for a specified area” has the meaning assigned to it by section 8(2) of the Act of 1949; “licence to treat milk by the ultra high temperature method” means a licence authorising the holder thereof to use the special designation “Ultra Heat Treated” in relation to milk treated by the ultra high temperature method by him in accordance with the provisions of Schedule 4 and sold by him by wholesale at or from the premises where it is so treated; “local authority” means an islands or district council; “milk” means cows' milk, but does not include cream or separated, skimmed, dried, condensed or evaporated milk or buttermilk; “pasteuriser’s licence” means a licence authorising the holder thereof to use the special designation “Pasteurised” in relation to milk pasteurised by him in accordance with the provisions of Schedule 2 and sold by him by wholesale at or from the premises where it is pasteurised; “pre-packed” means packed or made up in advance in the bottle or other container in which it is to be supplied to the consumer; “proper officer” shall be construed in accordance with section 235(3) of the Local Government (Scotland) Act 1973 ; “raw milk” means milk which has not been treated by heat; “retail container” means a bottle or other container which has a capacity of not more than 5 litres; “retailer for a specified area” means the holder of a licence to which section 8 of the Act of 1949 applies; “sell” includes offer or agree to sell or expose for sale; and “sale” shall be construed accordingly; “selling milk by retail” has the meaning assigned to it by section 1(4) of the Act of 1949; and “milk sold by retail” shall be construed accordingly; “selling milk by wholesale” means selling milk otherwise than by retail; and “milk sold by wholesale” shall be construed accordingly; “specified area” means an area in which sub-section (1) of section 1 of the Act of 1949 is in operation; “steriliser’s licence” means a licence authorising the holder thereof to use the special designation “Sterilised” in relation to milk sterilised by him in accordance with the provisions of Schedule 3 and sold by him by wholesale at or from the premises where it is sterilised. 2 For the purposes of this Order, a person shall be deemed not to be selling milk otherwise than by wholesale if the only persons to whom he sells milk by retail are persons employed by him in, or in connection with, the production of such milk or employed by him otherwise in agriculture. 3 Any reference in this Order to a numbered article or Schedule shall, unless the context otherwise requires, be construed as a reference to the article or Schedule so numbered in this Order. PART II LICENCES TO USE SPECIAL DESIGNATIONS Licences to use special designations 3 1 The special designations, the use of which may be authorised by a licence granted in accordance with the provisions of this Order, are “Pasteurised”, “Sterilised”, and “Ultra Heat Treated”. 2 Subject to the provisions of this Order, a local authority shall on application being made to them in that behalf grant a licence to the applicant authorising him to use the special designation specified in the application; and such a licence shall be in the appropriate form specified in Schedule 8 or in a form substantially to the like effect. 3 A licence shall authorise the use of a special designation only in relation to milk sold at or from the premises mentioned in the licence and, in the case of such milk sold by retail, only in relation to milk so sold within the area of the local authority granting the licence. 4 The use of a special designation in relation to milk sold by retail shall be authorised only by a dealer’s licence. Application for licence 4 1 An application for the grant of a licence (whether by way of renewal of an existing licence or otherwise) shall be made in the case of an application — a for a pasteuriser’s licence, a steriliser’s licence or a licence to treat milk by the ultra high temperature method, to the local authority of the area in which are situated the premises where the milk in relation to which the applicant intends to use the special designation will be pasteurised, sterilised or treated by the ultra high temperature method, as the case may be; b for a dealer’s licence, to the local authority of the area in which are situated the premises at or from which the milk in relation to which the applicant intends to use the special designation will be sold; and c for a dealer’s supplementary licence, to the local authority of the area in which the milk in relation to which the applicant intends to use the special designation will be sold. 2 Every application shall be in writing, shall specify the special designation which the applicant intends to use and, in the case of an application for a pasteuriser’s licence, a steriliser’s licence or a licence to treat milk by the ultra high temperature method, shall state whether the applicant intends to sell any of the milk by retail. Dealer’s supplementary licence 5 A dealer’s supplementary licence shall be granted by a local authority if they have satisfied themselves that the applicant has already been granted a dealer’s licence (in this article and in article 8 referred to as “the principal licence”) by the local authority in whose area are situated the premises from which he intends to sell milk and if those premises are the premises mentioned in the principal licence, and shall authorise only the use of the special designation the use of which is authorised by the principal licence. Power to refuse licence 6 A local authority or the Secretary of State on appeal may refuse to grant a licence (otherwise than by way of renewal of an existing licence as to which provision is made in Part IV of this Order) to an applicant — a if they are not satisfied that his arrangements for the handling, treatment, storage and distribution of milk are such as would enable him to comply with all relevant provisions contained in any enactment relating to milk and dairies or any order (including this Order) or regulations or byelaws made thereunder; or b if they are satisfied that the applicant, by reason of having been convicted of any offence under any enactment relating to milk and dairies or any order or regulations or byelaws made thereunder, is unsuitable to hold a licence. PART III DURATION AND CONDITIONS OF LICENCES Duration of licences 7 1 Subject to the provisions of this Order, any licence granted under this Order, or having effect as if so granted, shall remain in force until the expiry of the period of five years in which it comes or came into force, being one of the periods of five calendar years ending on 31st December in the year 1990 and in any fifth succeeding year. 2 Where an application for the grant of a licence by way of renewal of an existing licence is not determined before the date at which the existing licence expires, that licence shall remain in force until the application is determined: Provided that, where the local authority decide to refuse to grant such a licence, the period during which the existing licence remains in force by virtue of this paragraph shall be extended until the expiration of the period within which the holder thereof may appeal in accordance with the provisions of Part IV of this Order against the local authority’s decision and, if such an appeal is made, until the appeal has been dismissed or withdrawn by the appellant or has been allowed by the Secretary of State, and, in the last case, until a licence has been issued to the appellant. Duration of dealer’s supplementary licence 8 A dealer’s supplementary licence, unless suspended or revoked in accordance with the provisions of Part IV of this Order, shall remain in force for such period as the principal licence remains in force. Conditions applying to licences 9 1 Every licence to use the special designation “Pasteurised” shall be subject to such of the following conditions as are applicable:— a the general conditions set out in Schedule 1; b the special conditions set out in Schedule 2. 2 Every licence to use the special designation “Sterilised” shall be subject to such of the following conditions as are applicable:— a the general conditions set out in Schedule 1; b the special conditions set out in Schedule 3. 3 Every licence to use the special designation “Ultra Heat Treated” shall be subject to such of the following conditions as are applicable:— a the general conditions set out in Schedule 1; b the special conditions set out in Schedule 4. Special conditions applicable to certain licences 10 In granting a dealer’s licence' or a dealer’s supplementary licence (whether by way of renewal of an existing licence or otherwise), a local authority may, having regard to the circumstances of the case, include in the licence a condition that the special designation the use of which is authorised by it shall be used only in relation to milk received by the dealer in retail containers and sold by him in these containers, the caps or fastenings of the containers having remained unbroken. PART IV REFUSAL, SUSPENSION AND REVOCATION OF LICENCES AND APPEALS ARISING THEREFROM Power to revoke, suspend, or refuse to renew certain licences 11 Save in the case of a licence held by a retailer for a specified area and subject to the provisions of article 13, the local authority or the Secretary of State on appeal may suspend or revoke a licence or refuse to grant a licence by way of renewal of an existing licence on the ground — a of any breach of a condition thereof which is proved to the satisfaction of the local authority or the Secretary of State, as the case may be, to have been committed by the holder of the licence; or b that the holder of the licence, by reason of having been convicted of any offence under any enactment relating to milk and dairies or any order or regulations or byelaws made thereunder, is in the opinion of the local authority or the Secretary of State, as the case may be, unsuitable to hold the licence. Power to revoke, suspend, or refuse to renew licences held by retailers for specified areas 12 1 Subject to the provisions of paragraph (3) of this article and of article 13, the local authority or the Secretary of State on appeal may revoke a licence held by a retailer for a specified area or refuse to grant such a licence by way of renewal of an existing licence on the ground of a breach of a condition thereof, being a condition to which section 8 of the Act of 1949 applies, if the holder of the licence either — a has been convicted of an offence under that section by virtue of the breach in question, or (b) has been convicted, within twelve months before the time of the breach in question or after the time of it, of an offence under the Milk and Dairies (Scotland) Acts 1914 to 1949 (other than an offence under the said section 8) or of an offence under any order or byelaw made under any of the said Acts, and the decision of the local authority or the Secretary of State to revoke the licence or to refuse to grant a licence by way of renewal thereof as the case may be is made within twelve months of the date of the breach in question. 2 Subject to the provisions of paragraph (3) of this article and of article 13, the local authority or the Secretary of State on appeal may suspend a licence held by a retailer for a specified area on the ground of a breach of a condition thereof: Provided that any licence so suspended shall not be suspended for a period of more than three months by virtue of any one decision of the local authority or the Secretary of State, as the case may be, but any such period of suspension may be extended by a subsequent decision made in accordance with the provisions of this Order. 3 A licence held by a retailer for a specified area shall not be suspended or revoked nor shall the grant of such a licence by way of renewal of an existing licence be refused on the ground of such a breach as aforesaid unless the breach is proved (in a case referred to a tribunal by virtue of the subsequent provisions of this Order) by the finding of the tribunal or (in any other case) to the satisfaction of the local authority or the Secretary of State, as the case may be; and, for the purposes of this paragraph where the holder of a licence has been convicted of an offence under section 8 of the Act of 1949 by virtue of a breach of a condition of the licence his conviction thereof shall be sufficient proof of the commission of that breach by him. Defences against suspension, revocation, or refusal to renew licences 13 1 The local authority or the Secretary of State on appeal shall not suspend or revoke a licence or refuse to grant a licence by way of renewal of an existing licence on the ground of any breach of a condition thereof if the holder of the licence proves to the satisfaction of the local authority or the Secretary of State, as the case may be, that — a neither he nor any servant or agent of his did, or knew of the doing of, any act that constituted the breach or can reasonably be regarded as having been the cause or amongst the causes of it, or omitted to do, or knew of an omission to do, any act the omission whereof constituted the breach or the doing whereof can reasonably be regarded as a precaution that would have prevented it; and b if the breach was in connection with milk that had been sold to him, the special designation the use of which his licence authorised was used for the purpose of the sale to him and was so used without any breach, discoverable by the exercise of reasonable diligence on the part of himself or any servant or agent of his, of a condition of the licence to use that special designation held by the person who sold the milk to him, being a condition relating to the design, closing, fastening or marking of the containers in which the milk was sold to him. 2 The local authority or the Secretary of State on appeal shall not suspend or revoke a licence or refuse to grant a licence by way of renewal of an existing licence on the ground of a breach of a condition thereof, being a condition relating to the satisfaction by a sample of the milk to which the licence relates of any test to which the milk is required to be subjected in accordance with the provisions of this Order, unless — a in the case of any licence, there has been a breach in the case of not fewer than three such samples and no sample taken in the period intervening between the taking of the first and of the third such sample has satisfied such test, the said period being not less than 21 and not more than 28 days; or b in the case of a pasteuriser’s licence, a steriliser’s licence or a licence to treat milk by the ultra high temperature method, the local authority are or, as the case may be, the Secretary of State is satisfied, on a review of the results of the tests of all such samples taken in the period of twelve months immediately preceding the date on which the review is made, that the licence should be suspended or revoked or that a licence should not be granted by way of the renewal thereof, as the case may be. Procedure as to suspension, revocation and refusal of licence 14 1 Where a local authority propose to suspend or revoke a licence or to refuse to grant a licence under articles 6, 11 or 12 — a the local authority shall serve on the holder of the licence or the applicant for the licence, as the case may be, a notice informing him of their proposal and the reasons therefor and of his right under the next succeeding subparagraph; b the holder of the licence or the applicant for the licence, as the case may be, may, within 21 days after the receipt of such a notice, make representations in writing to the local authority in regard to the proposal and may require the local authority to afford him an opportunity of being heard by the appropriate committee of the local authority, and the local authority shall comply with any such requirement before making their decision; c any such hearing by a committee shall be in public and the holder of the licence or the applicant for the licence, as the case may be, shall be entitled to be heard by himself or by counsel or a solicitor or other representative as he may elects and he or his representative shall be entitled to call witnesses and to cross-examine such witnesses as may be called by another; and d subject to the foregoing provisions of this paragraph, the procedure at any such hearing shall be such as may be determined by the committee. 2 If the local authority, after complying with the provisions of the last foregoing paragraph, decide to suspend or revoke a licence or to refuse to grant a licence, they shall notify the holder of the licence or the applicant for the licence, as the case may be, of their decision and shall at the same time advise him, in writing, that he may appeal against the decision to the Secretary of State within 21 days of receiving such notification. 3 A decision of the local authority to suspend or revoke a licence shall not have effect until 21 days after the receipt by the holder of the licence of notice thereof, and in the event of an appeal against the decision until the determination of the appeal. Appeals 15 1 The holder of a licence whose licence has been suspended or revoked or an applicant to whom the local authority have refused to grant a licence (whether by way of renewal of an existing licence or otherwise) may, within 21 days of receiving notification of the local authority’s decision, appeal to the Secretary of State against the local authority’s decision to suspend or revoke or to refuse the licence, as the case may be. 2 On such an appeal being made the Secretary of State — a shall notify the appellant — i that he may within 21 days make representations in writing to the Secretary of State; and ii where the issue is the suspension or revocation of a licence held by a retailer for a specified area or the refusal to grant a licence by way of renewal of such a licence, that he may within the like period request the Secretary of State to refer the matter to a tribunal; and b where such a request is made, shall refer the matter to a tribunal; and c on receipt of the tribunal’s report, shall send a copy thereof to the appellant and to the local authority and before determining the appeal shall consider the report of the tribunal. 3 On any such appeal — a any reference in this Order to the doing of anything to the satisfaction of the local authority shall be treated as if the reference were to the doing of that thing to the satisfaction of the Secretary of State who in determining the appeal may, if he thinks fit, take into consideration any change of circumstances brought about since the date of the local authority’s decision; b the Secretary of State shall give his decision in writing and shall give reasons for his decision; c the determination of the Secretary of State shall be final and the local authority shall comply therewith. 4 An appellant may withdraw his appeal at any time by sending notice in that behalf to the Secretary of State. 5 Where under this article any issue is referred to a tribunal, the constitution and procedure of the tribunal shall be in accordance with the provisions of Schedule 7. PART V MISCELLANEOUS PROVISIONS Provisions as to sampling and testing 16 The provisions as to sampling set out in Schedule 5 shall have effect for the purpose of any provision of this Order relating to the taking of samples of milk, and the provisions of Schedule 6 as to the testing of samples of milk so taken shall have effect for the purposes of this Order. Designated milk from England, Wales and Northern Ireland 17 1 Where milk is brought into Scotland from England and Wales — a a licence granted under legislation having effect for the time being in England and Wales authorising the use, in relation to that milk, of a designation corresponding to a special designation prescribed by this Order shall have effect as if it had been granted under this Order; and b so far as any conditions prescribed in this Order for a licence authorising the use of that special designation would relate to anything to be done before the milk enters Scotland, they shall be deemed to be satisfied if the corresponding conditions of a licence as specified in sub-paragraph (a) above are complied with. 2 Where milk is brought into Scotland from Northern Ireland — a a Northern Irish licence (that is to say a licence granted under legislation having effect for the time being in Northern Ireland) authorising the sale of that milk under a designation corresponding to a special designation prescribed by this Order shall have effect as if it had been granted under this Order; and b so far as any conditions prescribed in this Order for a licence authorising the use of that special designation would relate to anything to be done before that milk enters Scotland, they shall be deemed to be satisfied if the corresponding conditions attaching to that Northern Irish licence are complied with. Powers of local authorities as to supplementary licences 18 Nothing in this Order shall authorise a local authority to whom an application for the grant of a dealer’s supplementary licence is made, or who have granted such a licence, to exercise outwith their own area any powers conferred on them by any enactment relating to milk and dairies or any order (including this Order) or regulations made thereunder. Transitional provisions 19 1 Proceedings taken in connection with appeals, and other things done, in relation to a licence granted under the Milk (Special Designations) (Scotland) Order 1980 and not completed before this Order comes into force may be continued under the corresponding provisions of this Order. 2 Any licence to use a special designation granted under the Milk (Special Designations) (Scotland) Order 1980 and in force immediately before the coming into force of this Order shall continue in force and have effect as if it had been granted under and subject to the provisions of this Order. Revocations 20 The Orders specified in Schedule 10 are hereby revoked. Sanderson of Bowden Minister of State, Scottish Office St Andrew’s House, Edinburgh 14th December 1988