Tuker v Ministry of Agriculture, Fisheries and Food

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE SELLERS
Judgment Date02 June 1960
Judgment citation (vLex)[1960] EWCA Civ J0602-1
Date02 June 1960

[1960] EWCA Civ J0602-1

In The Supreme Court of Judicature

Court of Appeal

Before:

Lord Justice Sellers

Lord Justice Ormerod and

Lord Justice Upjohn

re The Agricultural Marketing Acts, 1931 to 1949 and 1958.

Between:
Tuksr and anr.,
Appellants
and
The Ministry of Agriculture. Fisheries and Food,
Respondents

Mr. B.J.M. MacKENNA, Q.C. and Mr. D.A, GRANT (instructed by Messrs Ellis & Fairbairn) appeared on behalf of the Appellants (Plaintiffs).

THE ATTORNEY-GENERAL (sir Reginald Manningham-Buller, Q.C) and Mr. J.A. LEONARD (instructed by Mr. C.S. Davis, Solicitor to the Ministry of Agriculture. Fisheries and Food) appeared on behalf of the Respondents (Defendants).

LORD JUSTICE SELLERS
1

: This is the Judgment of the Court.

2

On the 6th June, 1958, the National Farmers' Union of England and Wales submitted to the Ministry of Agriculture, Fisheries and Food a draft of a document described as an Apple and Pear Publicity Scheme, purporting to be a scheme under the Agricultural Marketing Acts, 1931 to 1949, regulating the marketing of apples and pears.

3

By a letter of the 23rd June, 1958, the Ministry replied to this effect: "I am to say that, while the Minister is satisfied that the National Farmers' Union of England and Wales is substantially representative as aforesaid and that apples and pears are agricultural products within the meaning of the Agricultural Marketing Act,1931, he is advised that the scheme submitted is not a scheme that regulates the marketing of those products and that consequently it is not within the scope of section 1 of that Act. In the light of that advice, the Minister regrets that, in relation to this scheme, he is unable to take any of the steps laid down in that section. I am to add, in view of the terms of the last paragraph of your letter, that the Minister's decision relates only to the scheme submitted to him. He will consider any other scheme that Is submitted to him when he receives it". No other scheme was submitted, and the Union resorted to the Courts.

4

On the 28th June, 1959, by an Originating Summons, the Court was asked to determine the question "whether on a true construction of the Agricultural Marketing Acts, 1931 to 1949, a document entitled the Apple and Pear Publicity Scheme submitted to the said Ministry on the 6th June 1958 in accordance with the provisions of the said Acts is a scheme within the provisions of the said Acts".

5

Mr. Justice Diplock held that the Scheme failed to comply with the requirements of the Agricultural Marketing Act, 1958, or its predecessors. He held it was not a scheme regulating the marketing of an agricultural product by the producers thereof within the meaning of the relevant legislation.

6

The litigation has been conducted by two representatives suing on behalf of the National Farmers' Union, and a Notice of Appeal dated the 9th February, 1959, alleged six grounds of either misdirection or wrong decision on the part of the learned Judge, The statutes on the one hand and the Scheme purporting to fulfil the statutory requirements on the other have received from the learned Judge and from the argument of learned Counsel before this Court a most careful and thorough analysis.

7

After the Summons was issued and before the case was heard, the statutes referred to had been repealed and replaced by a consolidating Act, the Agricultural Marketing Act, 1958. But the case was argued in the Court below and very largely before us by reference to the statutes operating when the Scheme was prepared and submitted, and not to the new consolidating Act only. As the law was not altered in 1958 in any respect material here, it seems desirable, to save confusion, to retain the learned Judge's references.

8

The essence of the issue between the parties is whether the Scheme submitted, and adhered to as originally submitted nearly two years ago, is a Scheme regulating the marketing of apples and pears, or is it, as its title suggests, a publicity or advertising scheme and in substance no more than that.

9

The Agricultural Marketing Act, 1931, was passed to enable Schemes to be made for regulating the marketing of agricultural products and for other stated objects. The long title of the Act is: "An Act to enable schemes to be made for regulating the marketing of agricultural products; to confer powers upon boards and other bodies to be constituted in connection with, or acting for purposes connected with, such schemes; to establish agricultural marketing funds for the purpose of making loans there out to the boards aforesaid; to encourage agricultural co-operation, research and education; and to provide for purposes connected with the matters aforesaid".

10

By Section 1, "a scheme regulating the marketing of an agricultural product by the producers thereof may be submitted to the Ministry in accordance with Part I of the First Schedule to this Act and the Minister may, subject to the provisions of this section, approve the scheme".

11

By the First Schedule, a scheme regulating the marketing of an agricultural product may be submitted by any persons who satisfy the Minister that they are substantially representative of the persons who produce that product in the area to which the scheme is applicable. Sub-sections (3) to (5) deal with procedure which was not invoked here, because the Minister did not regard the Scheme as one which could in any circumstances be approved.

12

If the procedure had been followed, then Section 1(8) provides: "If the Minister is satisfied that the scheme will conduce to the more efficient production and marketing of the regulated product, he may lay before each House of Parliament a draft of the scheme". There then follow provisions whereby the Scheme may be approved and be brought into force. When approved by Parliament, the Minister by order approves the Scheme and its validity cannot be attacked in any Court,

13

The provisions of the Acts are detailed and cannot perhaps be easily or helpfully summarised. There are provisions which are essential In every scheme and those were referred to as mandatory provisions. The mandatory provisions under Sections 2, 3, 4 and 7 are of a procedural and administrative nature; for example, every Scheme shall (a) provide for the registration of any producer who makes application for that purpose: 1931 Act, Section 2, sub-section (l); (b) constitute a Board to administer the Scheme: 1931 Act, Section 2, sub-section (1); (c) provide for the establishing of a fund - to be administered and controlled by the Board: 1931 Act, Section 7, sub-section (l).

14

For present purposes, the more important provisions are the mandatory provisions of Section 6 and the optional provision of Section 5. The optional provisions of Section 5 indicate what may ho provided in a Scheme for the regulation of marketing and the encouragement of co-operation, education and research. They include provisions: (a) for empowering the Board to buy the regulated...

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