R (Middlebrook Mushrooms Ltd) v Agricultural Wages Board of England and Wales
| Jurisdiction | England & Wales |
| Judge | STANLEY BURNTON J |
| Judgment Date | 18 June 2004 |
| Neutral Citation | [2004] EWHC 1447 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No.: CO/5178/2003 |
| Date | 18 June 2004 |
[2004] EWHC 1447 (Admin)
The Honourable Mr Justice Stanley Burnton
Case No.: CO/5178/2003
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Peter Cranfield and Richard Brent (instructed by Michelmores) for the Claimant
James Goudie QC (instructed by Hextalls) for the Defendant
Introduction
1. In these proceedings the Claimant (“Middlebrook”) seeks judicial review of the Agricultural Wages Order 2003 (Number 1) (“the 2003 Order”), made by the Agricultural Wages Board for England and Wales (“the Board”) under the provisions of the Agricultural Wages Act 1948 (“the Act”).
The proceedings in outline
2. Middlebrook is the largest producer of mushrooms in the UK. Its claim is supported by the Mushroom Growers’ Association, comprising some 60 members representing some 70 per cent of the commercial mushroom growers in England and Wales.
3. The Board was established by the Act. It has power to fix by order taking effect under the Act minimum wage rates (and other terms of employment) of agricultural workers. Historically, the Board makes an Order annually, although it is not under a statutory duty to do so.
4. The 2003 Order came into force on 7 July 2003. It established a new category of worker, namely the Manual Harvest Worker (“MHW”), whose minimum wage (£4.30 per hour rising to £4.50 per hour from 1 October 2003) is lower than that of a Standard Worker (£5.10 per hour rising to £5.15 from the same date). It is obviously in the interests of agricultural employers to be able to employ workers at the MHW rate. However, mushrooms, uniquely, were excluded from the definition of produce the harvesters of which might be paid the MHW rate. The mushroom growers are understandably aggrieved by their special, and in their submission unjustified, exclusion from the benefit of the MHW rate.
5. In its original grounds, Middlebrook sought an order quashing the exclusion of mushrooms on the ground that their exclusion was discriminatory, without objective or reasonable justification, Wednesbury unreasonable and infringed their rights under Article 14 of the European Convention on Human Rights read with Article 1 of the First Protocol (“P1A1”).
6. The Board disputes each of these grounds. While it necessarily accepts that the 2003 Order treated mushroom growers and harvesters differently from growers and harvesters of all other crops, it asserts that the difference is objectively justified and reasonable. So far as Article 14 and P1A1 are concerned, it submitted:
(a) That minimum wage regulations are outside the ambit of P1A1.
(b) That mushroom growers are not discriminated against on the basis of any “status” to which Article 14 applies.
(c) That mushroom growers cannot point to an appropriate comparator in order to establish discrimination.
(d) That the differential treatment of mushroom growers and harvesters as compared with those of other crops is objectively justified and proportionate having regard to the social aims of the legislation and the 2003 Order.
7. Middlebrook sought to amend its grounds and to supplement its evidence so as to allege that the Board failed to have regard to relevant considerations and had regard to irrelevant considerations in making the 2003 Order, and that at least two members of the Board were “biased by pre-determination” when they considered the terms of the Order. The proposed amended grounds did not assert in terms that the Board had made the Order without giving the required consideration to the objections it had received from Middlebrook and other mushroom growers and the Mushroom Growers’ Association, but were treated as if they had done so in argument and Mr Goudie fairly took no point on this.
8. The Board objected to the late amendment of the claim and to Middlebrook's new expert evidence. If that evidence was allowed in, it sought to adduce evidence in reply. It disputed each of the new grounds asserted by Middlebrook on their merits.
9. I decided to hear argument on Middlebrook's application for permission to amend and to adduce further evidence with argument on the substantive claim, including the grounds raised by the proposed amendment and the new evidence, on the basis that I would deal with both the interlocutory and substantive issues in this judgment. Both parties accepted that this was a convenient course.
Permission to amend and further evidence
10. The 2003 Order was published on 7 July 2003. Middlebrook's claim was filed with the Court on 6 October 2003, at the extremity of the 3-month period stipulated by CPR Part 54.5. Permission to apply for judicial review was given by Moses J on 7 April 2004, when he also gave directions, including a direction for the service by 19 May 2004 of Middlebrook's evidence in reply to that to be served by the Board. Middlebrook's application to amend its grounds was not filed until 26 May 2004.
11. The period before the bringing of these proceedings is relevant not only to any relief the Court might order, but also to the question whether permission to amend should be given. So is the delay before the application to amend was made.
12. I am nonetheless persuaded that permission to amend should be given. The new grounds arise from evidence served by the Board, and in particular documents disclosed by it, including the minutes and transcript of its so-called confirmation meeting of 4 June 2003 at which the terms of the Order were agreed. Those grounds could not have been advanced before that disclosure, which was made by way of exhibit to the second witness statement of Derek Evans, the chairman of the Board, dated 27 April 2004. The grounds are clearly arguable, and raise important questions as to the procedure followed by the Board. If it be the fact that no proper consideration was given by the Board to the representations of the mushroom growers, it would be manifestly unfair for them to be precluded from seeking judicial review on that ground.
13. Furthermore, the substantive and the new procedural grounds asserted by Middlebrook cannot be entirely separated from each other. In principle, questions of Wednesbury reasonableness in the sense of unjustified discrimination depend solely on the effects of a public authority's decision, i.e. its consequences. Procedural questions, such as whether irrelevant considerations were taken into account or the requisite statutory consideration given to an objection, and irrationality in decision making, turn solely on events preceding the decision. But if the evidence shows that the authority was correctly advised as to the law, and gave proper consideration to the matters before it, the Court will be very reluctant to conclude that its decision was one that no reasonable authority could have made, or that the distinctions it draws are unjustified. The contrary is also true. The inadequacy of consideration of the matters required to be considered may explain why an unreasonable and discriminatory decision was made.
14. Lastly, the Board made it clear that the judgment of the Court in these proceedings will be important for its consideration of the anticipated 2004 Order. This factor too supports a comprehensive examination of the issues raised by Middlebrook.
15. The further evidence sought to be adduced by both parties added only marginally to their respective cases. There is now little real dispute as to the matters covered by that evidence. It will be admitted.
The legislation and its requirements
16. Section 3 of the Act confers power on the Board to fix minimum rates for time and piece work for workers employed in agriculture; subsection 2(a) requires the Board to make an order fixing minimum rates for time work. Paragraph 5 of Schedule 4 provides:
“An order of the Board under any provision of this Act may apply either universally to all workers employed in agriculture in the county to which the order relates or to any special class of workers (as defined in the order) so employed, or to any special area in that county or to any such special class in such a special area, subject in each case to any exceptions specified in the order; and an order of the Board fixing or varying a minimum rate of wages so as to secure that workers employed in agriculture receive remuneration calculated by reference to periods during the currency of their employment may make alternative provisions applying according to different circumstances arising during the currency of a worker's employment or in connection with the termination thereof.”
Middlebrook does not suggest that the Board could not have lawfully excluded mushroom pickers from a class of workers in respect of whose pay provision is made by an order, assuming the facts justified their exclusion.
17. The constitution of the Board is the subject of Schedule 1 to the Act. It consists of 8 persons representing employers and 8 persons representing workers in agriculture (who in practice are trade union representatives) and not more than 5 other persons (including at least one woman) (referred to as the independent members) appointed by the Minister (now the Secretary of State for Environment, Food and Rural Affairs and the National Assembly for Wales). Its chairman is designated by the Minister from the members appointed by him. Regulation 11 of the Agricultural Wages Board Regulations 1949 as amended ( SI 1949 No. 1884) provides that, at any Board meeting at which the number of members representing...
To continue reading
Request your trial
-
R(KBL) v SSHD and Ors
...irrational, it goes to the heart of the issue about proportionality also.” 28. At a more mundane level, R (Middlebrook Mushrooms Ltd) v Agricultural Wages Board of England and Wales [2004] EWHC 1447 (Admin) …. concerned a statutory order under the Agricultural Wages Act 1948, which establi......
-
Eventech Ltd (Claimant) The Parking Adjudicator (Defendant) London Borough of Camden and Another (Interested Parties)
...Wednesbury Reasonableness 64 I was referred to the words of Stanley Burnton J (as he then was) in Middlebrook Mushrooms Ltd v The Agricultural Wages Board of England and Wales [2004] EWHC 1447 (Admin) which was an example of the application of the test of Wednesbury reasonableness to a cas......
-
Chandler v Camden London Borough Council
...Ministry of Agriculture Fisheries and Food, ex parte Hamble Fisheries (1995) 2 All ER 714 at page 722 and Middlebrook Mushrooms ~v~ Agricultural Wages Board of England and Wales (2004) EWHC 1447 (Admin) at paragraph 74. It was Mr Wolfe's submission that, all the matters upon which the Cla......
-
Gallaher Group Ltd and Others, R v The Competition and Markets Authority
...“equal treatment principle” was said to be well-established in domestic law, by reference for example to R (Middlebrook Mushrooms Ltd) v Agricultural Wages Board of England and Wales [2004] EWHC 1447 (Admin) at para 74. The expression “conspicuous unfairness” was derived from the judgment o......