Middlebrook Mushrooms Ltd, R (on the application of) v Agricultural Wages Board Of England & Wales

When a statutory wage-setting body creates different minimum rates, the distinction must rest on facts relating to the work, including skill, commitment, working conditions or relevant costs. The crop or its seasonality, standing alone, cannot justify different treatment. An objection to a proposed order must be examined and accepted or rejected; deferring it to a later review is unlawful. A body cannot reject objections merely because addressing them may reopen negotiations. Where a crop-specific exclusion lacks a lawful factual basis, it may be Wednesbury unreasonable and may also infringe Article 14 of the European Convention on Human Rights read with Article 1 of the First Protocol. Relief against delegated legislation may require consideration of substantial severability and further consultation.

Middlebrook sought judicial review of the Agricultural Wages Order 2003 (Number 1), made under the Agricultural Wages Act 1948. The Order created a lower Manual Harvest Worker rate but excluded mushroom harvesting. Middlebrook challenged the exclusion as unlawful discrimination and irrationality, and later amended its grounds to allege failure to consider objections, irrelevant considerations and predetermination. The central issues were whether the Board had lawfully considered the objections, whether the exclusion was justified, and what relief could properly be granted.

The claim succeeded on the unlawfulness of the exclusion, but relief was reserved for further submissions.

1. Statutory procedure. Under Schedule 4 to the Agricultural Wages Act 1948, the Board had to examine the substance of objections and decide whether to accept or reject them. Deferring objections to a later year or working party, without deciding them before making the Order, was not lawful. The Board had considered the objections, but some members rejected them because acceptance might reopen negotiations and threaten the Manual Harvest Worker category. That was not a lawful reason.
2. Domestic lawfulness. Differences in minimum wage rates had to be based on facts relating to the work, including skill, commitment, working conditions, economic value or relevant costs. The type of crop alone could not justify different treatment. A crop-specific exclusion could be justified only if work on that crop was relevantly different from work on every significant crop within the category. Non-seasonality was not, by itself, a justification, and seasonality was not a qualification for the Manual Harvest Worker rate. The mushroom exclusion therefore lacked lawful justification, infringed the principle that persons in a similar position should be treated similarly, and was Wednesbury unreasonable and unlawful, applying the principle stated in R (Cheung) v Hertfordshire County Council The Times, 4 April 1998.
3. Convention rights. The court applied the approach stated in Carson and Reynolds v Secretary of State for Work and Pensions [2003] EWCA Civ 797: Article 14 required an act within the ambit of a substantive Convention right, discrimination on a prohibited ground, and absence of objective justification. A minimum wage requirement fell within the ambit of Article 1 of the First Protocol. Differences based on the kinds of business carried on constituted “other status”, and an appropriate comparator need only be sufficiently analogous. The Board failed to establish objective justification, so Article 14 read with A1P1 was infringed.
4. Relief. The court considered the substantial-severability test in DPP v Hutchinson [1990] 2 AC 783. It also noted that a modified delegated instrument not subjected to required consultation might not be capable of being quashed by a blue-pencil exercise, applying the reasoning in R v Secretary of State for Trade and Industry. The appropriate order was therefore deferred.

not stated in the judgment.