England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th June 2004

STANLEY BURNTON J :

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 employers and workers respectively is unequal, "the Chairman or other person presiding shall require the side which is in the majority to arrange that one or more of their members shall refrain from voting, so as to preserve equality".
18. The procedural provisions applicable to orders of the Board are the subject of Schedule 4 to the Act:

"1. Where the Board propose to make an order under any provision of this Act, the Board shall-

a) give, in such manner as appears to the Board requisite for informing persons concerned, public notice of the proposed order and of the manner in which and the time (not being less than fourteen days from the date of the notice) within which objections to the proposals may be lodged;

(b) serve a like notice by post on the agricultural wages committee for the county to which the order relates;

and shall consider any objections to the proposals which may be lodged in accordance with the notice.

2. After considering any such objections the Board may make an order in accordance with their original proposals or with those proposals modified in such manner as appears to the Board expedient having regard to any objections lodged:

Provided that where it appears to the Board that, having regard to the nature of any modifications which they propose to make in their original proposals, opportunity should be given for the consideration thereof by persons concerned, the Board shall again give and serve notice under the preceding paragraph, and this paragraph shall apply accordingly.

3. Notwithstanding anything in the foregoing paragraphs of this schedule, where the Board are satisfied that on the ground of the limited application of a proposed order it is unnecessary to comply with the provisions of those paragraphs and certify accordingly, the Board may, instead of complying with those provisions, give notice of the proposed order in such manner as appears to the Board expedient in the circumstances, and may make the order at any time after the expiration of seven days from the giving of the notice.

4. As soon as may be after the Board have made an order under any provision of this Act they shall give public notice of the making of the order and of the contents thereof in such manner as appears to the Board requisite for informing persons concerned, and serve a like notice by post on the agricultural wages committee for the county to which the order relates.

5. [See above.]

6. … an order of the Board made under any provision of this Act may be varied or revoked by a subsequent order made in the like manner and subject to the like conditions."

The relevant provisions of the Order

19. The 2003 Order defines a Standard Worker as any worker who does not fall within one of the specific categories listed in sub-sections 2.4 to 2.9 of the Order: i.e., it is the residual category. Subsection 2.4 contains the impugned definition of a Manual Harvest Worker, who is a worker:

"whose employment is wholly and exclusively for the purpose of undertaking the specific task of harvesting consumable produce (other than mushrooms) to the point where that consumable produce has reached a condition which will allow it to be stored prior to the first point of sale; and

who is not under such employment, employed by the same employer (whether under one or more contracts) for more than a total of 30 weeks (excluding holiday taken), in any Manual Harvest Work Period;

and

who is not:

at the time when any such contract is entered into, or

before the work under any such contract is completed, or

before any such contract is otherwise terminated,

offered further employment by the employer and is not required by the employer to offer himself or herself for further employment."

"Manual Harvest Work Period" is defined, essentially, as "the period of twelve months which commences on the worker's first day of employment as a Manual Harvest Worker with his/her employer and thereafter each subsequent period of twelve months."

20. None of the other specific categories of worker defined in the Order is relevant.

The exclusion of mushrooms: the background

21. The Board's 2001 Order contained (as had previous Orders) a category of worker described as "Casual Worker", in respect of whom the minimum rate was less than the Standard Rate. In essence, a Casual Worker was defined as a worker who was employed to undertake a specific task or tasks and was employed by the hour or the day and had not been continuously employed by the employer for more than 20 weeks. The definition did not exclude any particular type of crop or sector of employment. It applied to employees who were not employed for more than 20 weeks.
22. The Board was advised that employees falling within the Casual Worker category might be regarded as "fixed-term employees" within the meaning of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, the effect of which is to require such employees to be treated on the same terms as permanent employees. In consequence, in 2002 the Board abolished the Casual Worker category and introduced a new rate known as the Starter Rate. It applied to new employees during a 12-week probationary period and contained safeguards to protect experienced workers who changed jobs. However, the Starter Rate was significantly higher than the previous casual worker rate. It was therefore in the interests of agricultural employers to seek to introduce into the next Order a category who could lawfully be paid a lower rate. They understood, however, that in order to do so there would have to be an objective justification for the lower rate of pay beyond the fact that the worker was on a fixed term contract rather than being permanently employed.

The exclusion of mushrooms: events prior to the confirmation meeting of June 2003

23. With this in mind, a Jonathan Oatley wrote to the Board on 15 January 2003 on behalf of a group of horticulturists known as the "50 Club" proposing that the 2003 Order should make provision for a rate of pay for harvest workers which would be lower than that generally payable. His letter suggested a definition of harvest work which was the predecessor of that in the 2003 Order:

"The manual harvesting of crops to the point where the crop concerned has reached a condition which will allow it to be stored prior to marketing.

Harvesting means manual severance of the crop from the land or plant on which it is growing. It would not include operations which are carried out in the field where harvesting occurs, riddling of potatoes, work in packing sheds and the like."

Mr Oatley commented:

"In our view this provides a clear cut off point for every commodity. There should be no doubts at all as to when employees will become entitled to the higher standard rate of pay. By definition almost all agricultural crops are seasonal and thus in every case there is an exact time when the harvesting of every crop ceases, with the exception of Mushrooms which are harvested all the year round and we shall comment upon this sector individually."

24. His letter dealt with mushrooms in a remarkable passage which it is necessary to set out in full.

"We have made a specific study of this specialist non seasonal commodity. Mushroom pickers are employed throughout the year and whilst on some farms they may move from harvesting mushrooms to other work, in the great majority of cases the increasing demands placed upon mushroom pickers requires a total degree of specialization in that work and that work alone. Mushroom harvesting gangs by law rapidly become permanent workers, even if they are not employed in that capacity at inception. We have used as the basis of our study, mushroom harvest workers who are permanently engaged in that work.

We have analysed mushroom harvesting very closely. We find that this is very skilled and very specialist work, indeed far more skill is required than we have found to be necessary in the harvesting of any other crops. Hence mushrooms, uniquely, are harvested without continuous supervision. There is greater commitment in mushroom picking from employee and employer, which in turn increases the level of skill and eliminates the need for supervision. Pickers being year round employees, are trained and execute their job to skill and productivity levels not experienced in other crops because they are seasonal.

Mushroom harvesters must show levels of discipline and continuity and skill and commitment and training, that are not found in other crops. Mushroom harvesters are thus rewarded commensurate with their skills and in many cases are the subject of collective pay arrangements. They are a very different entity to those harvesting other horticultural crops."

25. It can be seen that Mr Oatley supported the exclusion of mushrooms from the harvest rate on the basis that special skill, specialisation and commitment are required of mushroom pickers. On that basis, the exclusion would of course be objectively justified.
26. Mr Oatley's "specific study" is not in evidence. Perhaps more importantly, there is no evidence to support Mr Oatley's assertions as to the skills, specialisation and commitment required of mushroom pickers. His impressive assertions were, not surprisingly, accepted by the Board at face value. They were inaccurate.
27. Mr Oatley explained his reasons for putting forward a proposal that excluded mushrooms in a letter to Mr Hall of Middlebrook dated 8 September 2003. He explained:

"It was made quite clear to me by a "50" Club member of the NFU Employment Committee that "Mushrooms" were a sacred cow to the TGWU. I gathered that this was largely because they have collective agreements with some, if not all, growers. I was advised that this was the first and most adamant point TGWU raised in their firm objection to a "Manual Rate of Pay" … It was thus obvious if I could not find my way round mushrooms I would fall at the very first fence!

…

With some 60% of all other horticulturalist wages at stake it was really no contest, we were forced to distance ourselves from the harvesting of mushrooms in every way and have done so. As a result mushroom harvesting has been deliberately excluded from the new Manual Harvesting Rate of pay."

28. Mr Oatley and his group obtained an opinion of Toby Hooper QC supporting the lawfulness of creating a harvest worker category who could be paid less than standard workers. In his opinion, Mr Hooper referred to Mr Oatley's letter of 15 January 2003 and said:

"I conclude that the nature and scope of mushroom pickers' work, viewed as a whole, excludes them from the harvest worker category."

Given the statements in the letter relating to mushroom pickers, Mr Hooper's conclusion was inevitable; but its correctness depended on the correctness of his instructions.

29. The employers' side on the Board took up the Oatley proposal, and supported it with Mr Hooper's opinion and two obtained by the NFU from Mr Clive Lewis. Mr Lewis was instructed by the NFU that "the mushroom pickers are in a different category from other manual workers as mushroom pickers do have additional skills which … truly differentiate them (from) other seasonal fruit and vegetable manual pickers". On 26 February 2003, the NFU proposal and these opinions were distributed to the members of the Board.
30. The Board consulted John Bowers QC on the compatibility with the FTER of the formulation of the category of harvest worker put forward in the Hooper opinion. In paragraphs 3 and 4 of his Advice dated 8 April 2003, Mr Bowers stated:

"3. The primary case for having such a definition is that the worker to be defined as a harvest worker

a. undertakes different work from the standard worker;

b. is less skilled than the standard worker and

c. is more transient in terms of engagement and thus with less commitment to the employer.

I now address the issues raised in my instructions dated 1 April.

The general definition of harvest worker; issue a

4. I do think that the proposed harvest worker definition is basically sound and robust. It addresses the four concerns raised in my previous advice. My primary residual concerns about the proposed definition are

a. Whether harvest workers are as clearly identifiable in practice as those proposing the definition contend;

b. That the current definition may give scope for a person who works the whole year round to be such a worker and thus not be of much help addressing the pro rata principle as defined under reg 1(2);

c. Whether there really is any such thing as wholly unskilled work, so that there may be some harvest workers (even outside of the special category of mushroom pickers) who do possess considerable skills;

d. Whether the commitment to the employer is as limited as suggested by the proponents of the harvest worker definition;

e. That there is still some ambiguity in respect of the person who one day may do harvest work and the next day standard work.

The proper resolution of these factual matters will be best known to members of the Agricultural Wages Board and I would suggest that the Board satisfies itself on each question before approving the harvest worker definition…"

31. The basis of Mr Bowers' statement as to the "considerable skills" of mushroom pickers was Mr Hooper's Opinion, the facts of which were, as I stated above, derived from Mr Oatley's letter.
32. Mr Bowers advised that the definition should contain a maximum time limit for its operation on the footing that:

"… clearly the paradigm case of a harvest worker is that of a person engaged for a particular season (or a shorter part thereof) but I understand that in the harvesting of tomatoes (as in mushrooms where special provisions will apply) the harvest is virtually all year round."

He suggested a maximum period of 30 weeks.

33. The harvest worker proposal was discussed at meetings of the Board held in April 2003. The Board adopted Mr Bowers' suggestion of a 30-week maximum and included it in its proposed 2003 order. In addition, it agreed to establish a working party to monitor the impact of the MHW category. At these meetings the Board did not consider the justification for the exclusion of mushrooms. According to the second witness statement of John Evans, the Chairman of the Board:

"The proposed definition put before the Board for consideration excluded the harvesting of mushrooms because it was understood that mushrooms were harvested throughout 52 weeks of the year. Therefore, mushroom workers would not fall within the proposed category of Harvest Worker which would only cover harvesting for up to 30 weeks in any successive 12 month period."

This reasoning does not explain why other crops, the harvesting of which takes place over a period exceeding 30 weeks, were included in the proposal.

34. The Board published its notice of its proposed order, as required by paragraph 1 of Schedule 4 to the Act, on 15 May 2003, requiring objections to be lodged with it by 30 May 2003. This period was short, but complied with the statutory requirement. The notice did not give any explanation for the exclusion of mushrooms from the proposed MHW category.
35. The Board received 22 responses to its proposal. Eight were from the mushroom industry. They included an objection from the Mushroom Growers' Association. Not surprisingly, all eight were uniformly hostile to the exclusion of mushrooms from the MHW. None of the eight could see any justification for the exclusion: their position was that there was no relevant difference between mushroom pickers and other manual harvesters. All regarded the proposal as discriminatory. Tunnel Tech Ltd's letter of 23 May 2003 stated that labour required for mushroom harvesting was sourced predominantly through agencies and was therefore transient.

"This labour, is almost exclusively foreign, has a high turnover and despite intensive training, harvesting rates remain low resulting in unit costs which cannot be sustained. … Underpinning these short-term workers at the same minimum level as full-time experienced workers cannot be justified or sustained by the industry and we thus find ourselves in exactly the same position as the rest of the fresh produce sector employing casual/short-term workers."

The letter pointed out that the acute seriousness of labour availability within the industry had been recognised by the Home Office, who had included the industry in the Sector Based Scheme ("SBS"), permitting employers to import workers from outside the European Union on fixed short-term contracts. It was pointed out that this scheme is similar in nature to the Seasonal Agricultural Workers Scheme, in that turnover of harvesters is high and long-term retention of the skilled picking workforce impossible. The letter concluded:

"The proposal as it stands is potentially highly discriminatory and we strongly urge the Board to reconsider the specific exclusion of the Mushroom Industry."

36. The Mushroom Growers' Association sent a letter of 27 May 2003 which was virtually a copy of that of Tunnel Tech.
37. Middlebrook's objection was made in a letter dated 23 May 2003. The points made included the following:

" We understand that a major factor leading to our exclusion was that our crops were not seasonal.

While this is true it is incorrect then to assume that our labour force was permanent.

The recruitment of suitable people to harvest mushrooms at the times and on the flexible basis we require continues to be a major problem.

To meet our requirements we have been forced to use workers from labour agencies.

By their very nature we have to suffer high turnover and lower than expected levels of productivity.

However, the ability to underpin their pay at the £4.30 level would improve our ability to meet the unit cost of harvesting that we need to achieve.

Therefore, we do not accept that there is a significant difference between our business and one that is seasonal. On the contrary we see significant similarities.

We are left to conclude that the mushroom industry has been used as a 'sacrificial lamb' to secure acceptance of the Manual Harvest Worker category."

38. Mr Hall of Middlebrook met Mr Evans on 2 June 2003. At the meeting, according to the Board's note (as corrected by Mr Hall's evidence), Mr Hall:

"argued that the main issue was that mushroom workers were of a more seasonal type than previously. Farms were currently having to resort to agencies if they employed between 10 to 20 people. Approximately 80% of the workforce is now composed of agency workers. Of these, between 65 to 70% stay (less) than a year. The average length of stay is 3 to 9 months. Workers are mainly foreigners…. The Home Office approves mushrooms in its new sector-based scheme."

Mr Evans stated that mushroom pickers had been excluded from the MHW category because it was aimed at seasonal harvest workers, and permanent workers, such as mushroom pickers, were deliberately excluded. He accepted that the Board had not considered that the mushroom industry was increasingly reliant on seasonal workers.

39. Mr Hall left with Mr Evans a note summarising Middlebrook's objections. The facts put forward included the following:

" It is not possible for us to recruit sufficient local labour to harvest mushrooms.

As a result we have no option but to use agency workers.

The use of agency workers has brought its own problems including low productivity, high labour turnover in addition to the costs of training and communication.

The difficulties faced by this industry have been recognised by the Home Office by its inclusion of the industry in the Sector Based Scheme.

The Sector Based Scheme, which commenced on 30/05/03, permits the industry to use foreign labour on a temporary basis.

The potential benefit of this scheme will be diminished if such labour cannot be considered under the 'Manual Harvest Worker' category.

Prior to the significant use of agency workers our labour costs were 40% of our total costs. This has now increased to 50%.

The use of the 'Manual Harvest Worker' category is appropriate for the mushroom industry as most of our harvesting employees will be on a temporary contract under the Sector Based Scheme.

We understand that one argument for our exclusion was that our crop was not seasonal. Surely there are other crops that fall into this category? (e.g. lettuce, herbs, cut flowers, chicory.)"

The note added:

"On the face of it, the global exclusion of employers engaged in the harvesting of mushrooms fails to take into account of the fact that some if not all mushroom producers will have employees which satisfy the criteria for inclusion in the MHW category."

The position immediately before the Confirmation Meeting

40. The objections received from the mushroom growing industry made it clear that the information in Mr Oatley's letter was misleading. There were substantial numbers of unskilled casual workers engaged in mushroom picking, workers who moreover were employed for relatively short periods.
41. The Board did not have before it the expert evidence as to harvesting periods for vegetables that has been put before the Court, and to which I refer below. But the Board consisted of representatives of employers and employees in agriculture, who must be taken to have some knowledge of horticulture. In any event, much of what is contained in the expert reports is common knowledge to anyone who shops for food. The Board could not have believed that mushrooms are the only, or the only significant, crop harvested for more than 30 weeks a year.
42. More important is the issue whether the material before the Board at the confirmation meeting justified the assumption that mushroom pickers are more skilled than other manual harvesters. The objections received by the Board meant that it could not reasonably have thought that the statements contained in Mr Oatley's letter, on which the draft order had been based, were reliable.

The confirmation meeting

43. The Board has very fairly disclosed both the minutes of the confirmation meeting and the verbatim transcript. The minutes are in my view a remarkably fair and accurate summary of the meeting.
44. Unfortunately, it seems that there was no formal agenda identifying the documents distributed to the members. The note left by Mr Hall with Mr Evans is not referred to in the transcript or the minutes, and given the lack of any evidence that it was shown to the Board, I infer that it was not. There was a list of "Key issues raised by respondents", and the first of these, significantly, was:

"What is the justification for excluding mushroom harvesting from the Manual Harvest Worker category?"

The form of the question was, I think, deliberately tendentious, and in my judgment rightly so. It is clear from the transcript of the meeting that Mr Webdale, a civil servant from Defra who is described in the minutes as "secretariat", Mr Shulman, the Board's legal adviser, and Mr Evans, were concerned whether the exclusion of mushrooms was justifiable, and that the Board should consider the issue properly and as required by the Act.

45. It is necessary to set out the relevant passages from the minutes of the meeting.

"4. The Secretary [Mr McInerney] stated that the Board had received a total of 22 responses of which 21 were from employers and 1 from an agricultural worker. Of the representations received from employers, 8 were from those engaged with the growing and picking of mushrooms, 4 were displeased in varying degrees that the mushroom sector had been excluded from the new category of Manual Harvest Worker while 4 companies gave full support to the proposals.

5. The Chairman reported that he and the Secretary had met with the Managing Director of Monaghan Mushrooms (Middlebrook's trading name) and circulated a paper setting out an account of that meeting. …

6. The Board discussed the representations made by the respondents to the proposals including those made by Monaghan Mushrooms. In particular it discussed the exclusion of the mushroom sector from the category of Manual Harvest Worker. Mr Webdale suggested that the Board consider whether in the light of the information provided by the mushroom growers, and Monaghan Mushrooms in particular, its view of the scope of the definition of Manual Harvest Worker was altered. He advised the Board that it needed to consider whether or not it was appropriate to exclude mushrooms as was initially proposed. Mr Fiddaman said that the employers' side had attempted a dialogue with the Mushroom Growers Association to see whether it was an issue which caused them any concern. They were informed that it was not because mushroom growing was a year-round activity. He suggested that the issue be looked at again in 2004. Mr Allenson referred to the meeting with John Bowers QC where the question of the exclusion of mushroom industry was raised. The Opinion of Mr Bowers was that the mushroom sector should be excluded from the category of Manual Harvest Worker. Dr Billot raised the point that during the negotiations the Board excluded the mushroom sector on the basis that it was not a harvest-type industry but rather a year-round one. The Chairman noted that there was a general consensus that the Board should not change the scope of the definition to encompass the mushroom sector. Mr Shulman advised the meeting that it was under a legal duty to consider objections in response to the proposals. If it wished to make no change to the definition it would need to establish that there was a valid distinction between the harvesting of mushrooms and other types of harvesting. Should it fail to do so it risked facing an application for judicial review. Mr Fiddaman proposed that the Working Party include further consideration of the mushroom sector within its remit when it monitors the introduction and operation of the Manual Harvest Worker category. This was agreed. The Board also agreed to the definition of Manual Harvest Worker unamended as the underlying rationale was to address field work during a restricted harvesting season."

46. A number of points call for comment. First, paragraph 4 was misleading. In fact all 8 of the mushroom growers who had responded to the proposed order had objected to their exclusion from the scope of the MHW category; none had given support to the proposals. Unfortunately, the transcript shows that this misleading wording was actually used. I have no doubt that it was unintended: the reference to 4 companies giving full support to the proposals was to companies who were not mushroom growers. But the Board was given a misleading impression as to the scale of objection. Some at least of its members must have read all the responses to the proposed order, and realised what the secretary had intended to say, but the transcript does not indicate that anyone corrected the record, and other references during the meeting suggest that it was accepted.
47. Secondly, the statement of Mr Fiddaman, the leader of the employers' side, that the Mushroom Growers' Association had stated that the exclusion of mushrooms was not an issue that caused them any concern, was inconsistent with the Association's letter of objection. Nothing has been put forward to justify Mr Fiddaman's statement. It was of course calculated to minimise the mushroom growers' objections.
48. Thirdly, Mr Allenson (the leader of the workers' side) relied on Mr Bowers' advice that mushroom pickers should be excluded from the MHW category. However, Mr Bower's advice was ultimately based on the information in Mr Oatley's letter, and by the date of the confirmation meeting the information the Board had received from mushroom growers showed that that information was unreliable and inaccurate.
49. Fourthly, the minutes indicate that the Board's response to Mr Shulman's impeccable advice was to remit the exclusion of mushrooms to the working party set up to monitor the introduction and working of the new MHW category: i.e. to defer consideration of the growers' objections until after the 2003 Order had been made. If this is what occurred, the Board failed to consider the growers' objections as required by the Act.
50. Lastly, the justification put forward for the exclusion of mushrooms was that "the underlying rationale was to address field work during a restricted harvesting season". That justification does not address the question whether the mushroom workers are more skilled or show greater commitment or whether there is any other factor justifying their higher pay than other manual harvest workers. I do not think that this underlying rationale is consistent with the non-seasonal definition of "Manual Harvest Work period".
51. Turning to the transcript of the meeting, the introductory statements made and questions raised by Mr Webdale were, like Mr Shulman's advice, impeccable. Mr Fiddaman then made the statement to which I have referred in paragraph 47 above. Mr Allenson then stated that "From our (the workers') side, we do not know that any of that information (relied upon by the Board in formulating its proposal) will have necessarily changed". I do not understand this comment: the information provided by the mushroom growers established that the Board had formulated its proposals on a basis that had little if any reality. Mr Allenson objected to a re-opening of negotiations between the two sides as to the content of the 2003 Order. Mr Evans pointed this out: he stated that they had not considered that, according to Mr Hall, 80 per cent of the labour force were casual workers, much recruited from overseas, as confirmed by the Home Office SBS scheme.
52. Dr Billot, an independent member of the Board, made a remarkable intervention:

"Last year, from memory, we had almost 800 letters of representation which ended up with about a 12 second discussion about them. Today, we have 22 and, as far as I recall, in four days of substantive negotiations, the mushroom industry was excluded at the very start of it on the basis that it was not a harvest-type industry; it was a 12-month around the clock industry. I think that everybody worked in good faith on that basis.

There is scant evidence in any of the few documents that have been handed in here to the contrary. I am not sure how one can even take this forward if there is a very different view. Ought it to be brought back to a different negotiation? It is a bit late in the day to even contemplate any of this issue on the basis of one company."

Quite apart from the startling description of the summary treatment of objections to the 2002 Order, the objection to the exclusion of mushroom pickers from the scope of the definition of MHWs was not limited to one company. Mr Evans corrected this misunderstanding, emphasising that objections had been received from "quite a number" of firms including the Mushroom Growers' Association, and stated, "We do need robust evidence in case we might be challenged on this." Mr Allenson spoke again:

"Can I say that we had the evidence that we had before. We have had this consultation. This particular meeting has drawn out some evidence. We are not absolutely sure at this stage whether evidence is in reality justifiable or not. From our perspective it is not. The previous situation still exists where mushroom growing is still very different to the categories that we were talking about before. In those circumstances, we would ask for those representations to be dealt with in that particular way. Quite clearly, this is just one meeting and one letter and we have had a very lengthy set of negotiations when many of these questions were already considered. Indeed, we referred to legal opinion."

It is troubling, if not inexplicable, to see that he reverted to the impression that there had been only one reasoned objection from a mushroom grower. I have seen nothing to suggest that he had any grounds for doubting the information put forward by the mushroom growers. The reference to a legal opinion was flawed, for the reason I have mentioned above. What was the "particular way" in which the representations should be dealt with is unclear, but was probably that they should be rejected for the purpose of the 2003 Order and considered by the working party appointed to monitor the working of the MHW category.

53. Mr Evans, as Chairman, intervened again. He stated that the consensus of the meeting was that the Board should not change its position in relation to mushrooms, but he remained concerned that the issue should be properly considered in view of the representations received. By implication, he was stating that the representations had not yet been properly considered. He was interrupted, but the point was taken up by Mr Shulman, who said:

"The judicial review (threatened by Middlebrook) would consider the process of the decision which the Board had come to. There have been a number of representations by, or on behalf of, mushroom growers. They have put forward a number of points. I do think it would be prudent for the Board to consider those. They are duty-bound to consider those. If the Board is not to take on board those points, they would need, in my view, to record why those representations had been rejected."

54. Mr Monckton, a representative of the workers, responded. He said:

"Like your fellow independent member, I think this is really dodgy ground. I have been a member of the Board for years and, rightly or wrongly, these meetings had become just a formality. Either they have some real substance or they do not. If we are saying that one representation is going to result in us having to do all sorts of things to justify our position, then that applies to all of them.

I notice that in the key issue, we do not even see any of the issues from the one letter which came from the farm worker. If we are going to do justice to representations, then we will have to do proper justice. We are going to need to set aside two or three days to go through all the letters and to answer all the points. It is inconceivable to me that if, as a result of this meeting, mushroom workers are subjected to the Manual Harvest Rate, there will be total uproar. I am not joking. I am not kidding you. There will be uproar from our side.

You have got to remember where we came from. We did not like what came out of these negotiations. We started them without yourselves, but with the NFU, with the issue of the Manual Harvest Worker. We agreed amongst ourselves that we would support the position that the NFU were at in a way to get over many of the problems that both sides could see in the industry. We were not very happy with it, but we agreed. Part of the deal, right from the start, was that mushroom workers were not included. If there is any chance of that changing, we should be saying that we reserve the right to have the whole of the negotiations again.

Please bear in mind that if we do go down that route, the easiest solution to the problem is to scrap the Manual Harvest Rate and to go back to the Starter Rate, which are two of the things that are asked for on here. Bear in mind that this is an absolute hotpot waiting to boil over."

55. Mr Evans pointed out the need for further consultation if the MHW proposal was to be scrapped. This led Mr Fiddaman to state:

"Can I support the proposals that you were making earlier, Chairman, and that is that we have considered the issue. We did, when we initially discussed this, recognise that the mushroom industry clearly was a 12-month production process. They admit that themselves anyway. It was on the basis that it was not seasonal and therefore was not particularly looking at peak opportunities where crops were at risk, which was why we were after a Manual Harvest Worker definition. These crops are at risk of harvesting because of the weather [conditions] and in the protected environment of mushrooms, they are not. I know that there are other sectors that are protected so one has to be cautious in how we raise that.

That was the issue on which we defined the Manual Harvest Worker. It was that those crops were at risk to be harvested. Mushrooms have a continual process and there was an indication certainly from the information that we were being given that the workers who were there to pick were less supervised than we would expect in most of the other manual harvesting conditions where there are quality standards which would require supervision from staff to achieve the necessary qualities required of the end produce. It was on that sort of basis that we recognised that the mushroom industry was different from the other areas that we were looking to try and support in the main harvest definition.

On the back of that, may I therefore suggest that as part of the Manual Worker Working Group, we actually look at the issue to see if this issue is real over the next 12 months. Therefore, we are not totally ignoring it, but we are prepared to consider if there are real issues over the points that we have used to actually justify why we picked it in the first place."

56. Lastly, Mr Wensak, also of the employers' side, stated that the fact that mushrooms are not seasonal is "conclusive".
57. At this point the Chairman suggested that no action be taken on the mushroom growers' objections to the 2003 Order, but that the Working Party that had been established would monitor the operation of the MHW rate. That proposal was agreed, and the 2003 Order implemented that agreement.

Other relevant facts

58. The expert evidence before me confirms that a number of vegetables are harvested for sufficiently long periods that to refer to them as seasonal is at best uninformative and at worst misleading. Tomatoes are harvested for approximately 40 weeks i.e. 10 months of the year; cucumbers for approximately 11 months of the year; aubergines and sweet peppers for approximately 40 weeks i.e. 10 months of the year. Spring greens and cabbages are harvested all year round. It is true, as Mr Brown, the expert whose reports have been adduced by the Board says, that these crops have seasonal fluctuations. But it remains true that manual harvesting is required for more than the 30 weeks stipulated by the 2003 Order.
59. More important, however, is the evidence relating to the suggestion that mushroom pickers are, as Mr Oatley represented, as a class more skilled than other manual harvest workers, or at least sufficiently more skilled as to justify the distinction drawn between them and other manual harvesters. Mr Whalley, Middlebrook's consultant, states that mushroom picking is not particularly demanding, although skill is involved (as in any horticultural harvesting) in picking the desired grade with repeatability and speed. Mushrooms do however require light and careful picking. At Middlebrook, new workers are given a 4-week training period, but other enterprises give a morning's training after which management is used to increase productivity. The majority of pickers are sourced either from agencies or from the SBS scheme. Mr Brown states that mushrooms offer the opportunity for longer-term employment than other kinds of manual harvesting, but accepts that "Whether people are attracted to taking up that opportunity is a different argument", and that mushroom growers are compelled in practice to use SBS – i.e. foreign and at least initially unskilled – labour. He makes the point that length of training will vary from enterprise to enterprise, with some using what is referred to as management to supplement what may be a short period of training. Skills similarly vary between workers. As Mr Brown states:

"There is (sic) certain to be different proficiencies between individual workers on the grounds of aptitude, dexterity, training and experience. This is true for harvesters of all horticultural crops."

Due consideration of the mushroom growers' objections and the lawfulness of the 2003 Order under domestic law

60. The Act confers important powers on the Board. Its orders affect the livelihoods of workers and employers in agriculture. Its exercise of its powers, and the Court's scrutiny of their exercise, must take that into account. The Board must take care that the interests of minorities of employers or of workers are not sacrificed to the interests of the majority.
61. The Act requires the Board to "consider" any objections to a proposed order. It does not require them to be considered individually: if a number of objections in substance make the same point or points, they may be considered collectively.
62. Consideration requires the Board to examine the content of an objection and to determine whether or not it should be addressed in the provisions of the order it proposes to make. The Board cannot lawfully make an order without deciding whether to accept (wholly or in part) an objection or to reject it. Deferral to the following year without consideration is not a lawful option.
63. It is difficult to see that these requirements were met in relation to the 2002 Order, if Dr Billot's statement was correct, or if Mr Monckton's description of confirmation meetings as a "formality" was accurate. However, that is irrelevant to the present proceedings.
64. In deciding whether or not to change the provisions of a proposed order on account of objections received by the Board, it must ignore matters that are irrelevant under the Act, but must take into account relevant matters.
65. It is not a good reason to reject an objection that its acceptance would involve wholesale redrafting of a proposed order or the re-opening of negotiations between the employers' and the workers' representatives on the Board. The object of the requirement of consultation is to enable persons affected by a proposed order to bring to the attention of the Board facts that require a proposed order to be changed, and may involve the re-opening of negotiations between the two sides of the industry.
66. The Board did consider Middlebrook's objections to the proposed order. Its consideration was marred by a number of misstatements made by members of the Board, but I do not base my decision on this. The Board did not establish that there was "robust" evidence justifying the exclusion of mushroom pickers: indeed, the discussion after Mr Evans, as Chairman, stated the need for such evidence was cursory. I conclude from the transcript that some at least of the members of the Board did decide to reject the mushroom growers' objections because their acceptance would result in a re-opening of negotiations and the real possibility that the incorporation of the MHW rate would be rejected by the workers' representatives.
67. The Board fixes minimum wages (and other terms of employment) for workers. Any distinction it makes between the minimum rates of pay of different classes of workers must be based on facts relating to their work (in which I include the economic value of their production), including matters such as the skill and commitment required of them, and the conditions in which they work or to their costs (as where workers in one area are paid more on account of greater living costs).
68. It follows that the fact that a worker is involved on one crop rather than another does not of itself justify a difference in rates of pay.
69. The Board may lawfully distinguish between workers involved with a seasonal crop as against those involved with a non-seasonal crop if different rates of pay are justified, but not otherwise. The fact that a crop is non-seasonal is not of itself a justification for a distinction.
70. Some at least of the members of the Board did regard the fact that mushrooms are non-seasonal as of itself justifying the exclusion of manual mushroom pickers from the MHW category: see, e.g., Mr Wensak's justification.
71. The exclusion from an otherwise universal category of workers involved with a particular crop may be justified if their work on that crop is relevantly different from work on every significant crop within the category. Mr Oatley appreciated this: hence his reference to the special skills, commitment and specialisation of mushroom pickers. It was clear from the mushroom growers' objections that the facts were otherwise. In the course of argument I asked Mr Goudie what material was before the Board at the confirmation hearing that justified a conclusion that mushroom pickers have any greater skill or commitment than workers in all other crops. His answer was that the fact that mushrooms are harvested all year round justified the finding that greater commitment and skill were required of mushroom pickers than other manual harvesters. That is, with respect to him, a non sequitur. The fact that a worker could be employed all year round does not mean that in fact he is, or that he has any greater skill than seasonal workers. The indisputable fact that substantial numbers of mushroom pickers are recruited unskilled under the SBS scheme shows that the understanding that superior skills or commitment are required for mushrooms was unfounded.
72. As mentioned above, while the motivation for the MHW category may have included seasonality, seasonality is not a qualification for the inclusion of harvesters in that category. The only relevant qualification is that the rate cannot be paid once an employee has worked for 30 weeks. Other crops are harvested over periods exceeding 30 weeks, but their harvesters were not excluded from the rate.
73. I fail to see that the fact that other crops may be damaged by the weather can of itself be a valid distinction justifying a lower rate of pay. In any event, however, as was recognised by the Board at the confirmation meeting, other crops are also grown under glass and are protected from the weather.
74. It follows that the Board had no lawful justification for the exclusion of mushroom pickers from the MHW rate. "It is a cardinal principle of public administration that all persons in a similar position should be treated similarly." (Lord Donaldson MR in R (Cheung) v Hertfordshire County Council, The Times, 4 April 1998, cited in de Smith, Woolf & Jowell, Judicial Review of Administrative Action, fifth edition, at paragraph 13-041. This principle was infringed. The exclusion of manual harvesters of mushrooms from the MHW category was Wednesbury unreasonable and unlawful: if the Board had correctly applied the law, the decision to exclude them would not and could not have been made.

Article 14 of the European Convention on Human Rights and A1P1

75. It is common ground that Article 14 does not create a free-standing right. It is restricted to discrimination in "the enjoyment of the rights and freedoms set forth" in the Convention. "What has to be shown is that the act complained of (a) falls within the 'ambit' of a substantive Convention right, (b) involves discrimination on a prohibited ground, which (c) is not objectively justified." See Laws LJ in Carson and Reynolds v Secretary of State for Work and Pensions [2003] EWCA Civ 797 [2003] 3 All ER 577 at [25].
76. Thus the first question to be considered is whether minimum wage regulations are within the ambit of A1P1. It is as follows:

"Protection of property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

77. It is by no means obvious that legislation fixing minimum wages amounts to an interference with peaceful enjoyment of the employer's possessions or "deprivation" of the employer's possessions, however widely "possessions" is defined. The European Court of Human Rights has explained A1P1 as follows:

"The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest…The three rules are not, however, 'distinct' in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule."

See, e.g., Case 38993/97 Stockholms Försäkrigns-Och Skadeståndsjuridik AB v Sweden, para 46.

78. In R (London & Continental Stations and Property Ltd) v The Rail Regulator [2003] EWHC 2607 (Admin), Moses J held that the Rail Regulator's imposition of provisions for the calculation of compensation payable by the owner and manager of a railway station to a train operating company in a private contract between the claimant and the train operator for access to a station constituted an interference with the enjoyment by the claimant of rights as an owner of property. There is little difference between the imposition of provisions for the calculation of compensation and the imposition of a minimum wage.
79. In Admissibility Decision in Application No 35771/97, Thorkelsson v Iceland, the European Court of Human Rights held that compulsory contributions of employees to a specified pension fund fell within the second paragraph of A1P1, as being a control over their use of their possessions. Mr Goudie suggested that this case was decided on the basis that pension contributions are a form of taxation; but the Court seems to have accepted the Icelandic Government's argument that they were a measure of control. In any event, pension contributions that go to fund a pension differ from taxation, which goes to fund public expenditure. The decision would have been more relevant to the present case if the applicants had been employers rather than employees. However, if employees' compulsory contributions to a pension fund are subject to A1P1, it is difficult to see that an employers' compulsory contributions would not be; and it is difficult to see a relevant distinction between an employer's compulsory contribution to a pension fund and his compulsory payment of a minimum wage.
80. Looking at the matter broadly, in my judgment a legal requirement for the payment of a minimum wage is within the ambit of A1P1. To the extent that the minimum is more than the employer would otherwise have paid, the requirement deprives the employer of his assets. If such a requirement were outside A1P1, such legislation could be used for concealed expropriation. Moreover, it seems to me that if legislation required employers selected on the ground of race or religion to pay an increased minimum wage, the application of Article 14 read with A1P1 would be thought obvious.
81. This is not to say that minimum wage legislation infringes A1P1. To the contrary, in almost all cases it is obvious that the legislation is justified in the public interest, and the courts accept that the legislature has a wide margin of appreciation in this respect, as the decisions of the European Court of Human Rights show. In the present case, Middlebrook does not challenge the power or the decision of the Board to fix minimum rates of pay: it is the distinction between employers of mushroom pickers and those of the harvesters of other crops that is in issue.
82. The second question is whether the 2003 Order discriminates between mushroom growers and other horticulturists on a prohibited ground, i.e. some personal status. Mr Goudie rightly accepted that the expression "other status" in Article 14 is to be widely construed: see R (Hooper ) v Secretary of State for Work and Pensions [2003] EWCA Civ 813, [2003] 1 WLR 2623. In my judgment, differences based on differences in the kinds of business carried on by persons are based on their status for the purposes of Article 14.
83. The Board contends that there is no comparator with which mushroom growers can be compared, so as to decide whether there has been discrimination. It is difficult to distinguish this question from the question whether the difference in treatment between mushroom growers and all other horticulturists can be objectively justified. The comparator chosen by a claimant need not be in an identical position to him: he must be in a sufficiently analogous or similar position for the comparison to be appropriate. If there is no sufficient relevant distinction between the chosen comparator and the claimant, it is difficult to conclude that the comparison is inappropriate.
84. In deciding whether there is an objective justification for the different treatment of the class complaining of the infringement of its rights under Article 14, the Court is not restricted to the matters before the decision maker. Under this head, therefore, the Court is free to consider the expert evidence adduced by the parties for the purposes of these proceedings.
85. In the light of my above conclusion on the lawfulness of the exclusion of mushroom pickers from the MHW category under the 2003 Order, it is not necessary to consider separately the issue of objective justification. It is for the Board to establish objective justification. For the reasons set out above, it has failed to do so. It has not shown that these are facts relating to the work of harvesting mushrooms justifying a higher minimum rate of pay than that applicable to the harvesting of all other crops.
86. It follows that Middlebrook has established that the exclusion of mushroom pickers from the definition of MHWs caused its rights under Article 14 read with A1P1 to be infringed.

Remedies

87. The question what if any relief should be granted to Middlebrook if it established that the exclusion of mushrooms from the crops covered by the MHW category was unlawful was explored during argument. As the difficulties involved became apparent, I stated that I should defer my decision on relief until the parties had seen my judgment and had an opportunity to consider it and to make submissions in the light of it. Following the hearing, I received written submissions on behalf of Middlebrook. The Board had not been directed or invited to submit written submissions in reply and accordingly did not do so. I remain of the view that it is appropriate for submissions on relief to be made after the parties have considered my judgment. I shall hear counsel on the question of the order to made by the court at a convenient time after judgment has been handed down. I do, however, propose to adumbrate the matters that concerned me.
88. Before doing so, I record that Middlebrook has informed the Court that if successful in these proceedings it will not seek to recover from any of its workers any sum paid to them in consequence of the exclusion of mushrooms from the crops to the harvesting of which the MHW category relates. The Mushroom Growers' Association has made a similar statement. However, neither it nor its members (other than Middlebrook) are parties to these proceedings, and no undertaking has been offered by them or on behalf of mushroom growers who are not members of the Association. Whether anything would be recoverable as a matter of law or in practice from mushroom harvesters is not a question I have considered or, probably, that I should consider.
89. Middlebrook do not seek an order quashing the whole of the 2003 Order, which would clearly be inappropriate, since many of its provisions (such as those relating to flexible workers) are quite independent of the MHW category. Nor does it seek an order quashing the provisions of the 2003 Order establishing the MHW category and rates of pay: its object in bringing these proceedings is to give itself the possibility of paying that rate rather than the standard rate, and to destroy the MHW would be to leave it obliged to pay the standard rate. It therefore seeks simply the quashing of the words "(other than mushrooms)" from the definition of the MHW. Since it is not suggested that any other part of the 2003 Order is unlawful, this is therefore a case of partial invalidity.
90. The parties are agreed that the test for partial quashing of delegated legislation is that laid down by the House of Lords in DPP v Hutchinson [1990] 2 AC 783, and is accurately summarised in de Smith, Woolf & Jowell, Judicial Review of Administrative Action, fifth edition, at paragraphs 6-101 to 6-102:

"The majority of their Lordships accepted the test of 'substantial severability' and it was held that this could be achieved in the following two situations:

"(1) Where the text could be severed so that the valid part could operate independently of the invalid part, then the test of substantial severability would be satisfied when the valid part is unaffected by, and independent of, the invalid part.

(2) Where severance could only be effected by modifying the text, this can only be done "when the court is satisfied that it is effecting no change in the substantial purpose and effect of the impugned provision.""

What are the purpose and effect of the impugned provision is to be determined objectively, applying normal rules for its interpretation.

91. The reasons for concern as to whether the quashing of the words "(other than mushrooms)" is appropriate are two-fold. First, there is evidence to suggest that had the Board appreciated that the mushrooms could not properly be distinguished from other crops, at least some of its members would have objected to the creation of the MHW category. Why the workers' representatives on the Board regarded the exclusion of mushrooms as an important matter of principle is not explained on the evidence before me. But if there were reasonable grounds for their position, there may be argument whether the deletion of the offending words would affect "the substantial purpose and effect of the impugned provision".
92. Secondly, the question arises whether, if the Board had decided in the light of the mushroom growers' objections to delete the offending words from the proposed 2003 Order, it would or should have given notice of the new proposal in the same way as it had done of the original draft. The proviso to paragraph 2 of Schedule 4 requires it to do so "where it appears to the Board that, having regard to the nature of any modifications which they propose to make in their original proposals, opportunity should be given for the consideration thereof by persons concerned." The fact that the order resulting from the quashing of the offending words has not gone out to mandatory consultation is "a fatal objection to a blue pencil exercise": Laws LJ in R v Secretary of State for Trade and Industry (unreported, 9 December 1999). In that case, the Court refused to strike out the words "or otherwise" from a statutory instrument. In this case, whether there should be an opportunity for further consultation is a matter for the Board; but the decision whether to give notice of a revised proposal is one to be made by the Board, not by the Court.
93. It seems to me, therefore, that I could not make an order the effect of which would be to produce an order of which notice had not been given pursuant to the proviso to paragraph 2 of Schedule 1 unless I were satisfied that the Board could not reasonably have decided to give such notice, or that, if notice had been given, there could not have been any reasonable objection to the modified order on the part of persons concerned. The persons concerned would, of course, obviously include persons working or proposing to work for mushroom growers as manual harvesters. These too are matters that have not been addressed in evidence or in argument.