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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
    1. Attorney-General v Aspinall [1835-42] All ER Rep 525
    2. Kruse v Johnson [1898] 1 2 QB 91
    3. Roberts v Hopwood [1925] All ER 24; [1925] AC 578
    4. Secretary of State for Education and Science v Tameside MBC [1976] 3 All ER 665; [1976] 3 WLR 641
    5. Bromley London Borough Council v Greater London Council and another [1982] 1 All ER 129
    6. Wheeler and others v Leicester City Council [1985] 2 All ER 151 (CA)
    7. Wheeler and others v Leicester City Council [1985] 2 All ER 1106 (HL)
    8. R v Lewisham London Borough Council, ex parte Shell UK Ltd [1988] 1 All ER 938
    9. Norwich City Council v Secretary of State for the Environment [1982] 1 All ER 737
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Roberts v Hopwood [1925] All ER 24; [1925] AC 578

LORD ATKINSON: The questions to be determined in this appeal are, first, whether certain payments of sums of money, purporting to be payments of wages, made by the council of the metropolitan borough of Poplar, called for convenience "the council," to its workpeople during the year ending Mar. 31, 1922, were, upon the evidence in the case, contrary to law within the meaning of s.247(7) of the Public Health Act, 1875, and, secondly, whether the appellant, the district auditor, whose district includes the metropolitan borough of Poplar, was entitled to disallow and surcharge upon the respondents aldermen and councillors of the council, hereinafter called the respondents, the sum of (5,000 in respect of these payments. The decision of these questions involves the consideration of, first, whether it is the duty of a district auditor to consider the reasonableness of the charges and payments appearing in the accounts of local authorities...; and, second, the question as to the scope of the discretion vested by Parliament in the metropolitan borough councils in connection with the payment of salaries and wages. One must start upon these inquiries with a clear appreciation of the fact that in this case the servants to whom these challenged payments were made were of the lowest grade of labour. This is not disputed.

In the year 1914...there was not in that year any striking variation in the scale of wages adopted by the councils of the several metropolitan boroughs for the several grades of their employees ; the scales of wages paid in 1914 by this council were not the highest, but compared with those of other councils were somewhat above the average ; the minimum wage for the lowest grade of labour in Poplar borough in that year was 30s. weekly for men and 22s. 6d. weekly for women. These facts were not disputed....

The vanity of appearing as model employers of labour had not then, apparently, taken possession of the council, nor had the council become such ardent feminists as to bring about, at the expense of the ratepayers whose money they administer, sex equality in the labour market. The auditor states in his affidavit that various increases were made by the council -in the years between 1914 and 1920, that on April 30, 1920, the minimum wage for the lowest grade of labour was 64s. weekly for men and 49s.6d. weekly for women. According to the statements contained in this same paragraph, a resolution was then passed fixing the minimum rate of wages at 80s. per week for both men and women, or an increase of 16s. per week in the case of men and 30s. 3d. in that of women. Thus suddenly did the female labour of the lowest grade appear to have increased in value. The auditor, in the sixth paragraph of his affidavit, states that he uses the words "cost of living" as meaning the cost of living determined by the Ministry of Labour and published weekly in the "Labour Gazette" of that Ministry ; that in the year 1920-21 this cost of living had risen to 176 per cent. beyond what it was in the year 1914 ; and that, though in the year 1921-22 the cost of living had decreased to only 82 per cent. over what it was in 1914, the minimum rate of wages for men and women at 80s. remained unchanged. It is but right and natural that the rate of wages should rise if the cost of living rises, because this tends directly to keep the purchasing power of the labourer's wage at what it was before the cost of living increased. The principle apparently adopted by the council, however, is that wages should rise if the cost of living rises, but should never go down if the cost of living goes down. As I understood counsel for the respondents, he did not contend ultimately that the council could properly or legally fix the salaries or wages of their employees at an excessively high rate. He apparently thought that this would be an unjust and unlawful exercise of their discretion.... In order, however, to determine, in such a case as this, what is the line of excess, one must first determine what is the line of moderation in such matters, the datum line - as it may be styled - beyond which excess begins....

I entirely concur with the conclusion expressed by BANKES LJ [in the Court of Appeal] in the following passage of his able and well-reasoned judgment. After referring to...the affidavits of the mayor of Poplar and others filed in support of the rule he said:

"The arguments there set out are of such a general and vague character that the question ,which the court has to decide cannot be disposed of without a closer investigation of the facts. In the absence of precise and detailed information as to the grounds on which the council acted, their action must, in my opinion, be judged mainly by its results. The results according to the finding of the district auditor are that the payments made in many instances were far in excess of those necessary to obtain the services required and to maintain a high standard of efficiency and were thus in reality gifts to their employees in addition to remuneration for their services. If this finding is justified upon the evidence it establishes, in my opinion, the making of payments contrary to law. It must be borne in mind what the payments are for. They are payments for wages; that is to say, the price which the employer pays the employee for his or her services. Of recent years the tendency has everywhere been to standardise wages by either fixing the actual rate to be paid or by fixing minimum rates. In some cases the legislature has stepped in to bring about this result. In most cases it has been due to the action of organised labour or associations consisting of employers and employed. The result has been to create in relation to labour what, in relation to commodities, is recognised as a market price."

[I]t is only what justice and common sense demand that, when dealing with funds contributed by the whole body of the ratepayers, they should take each and every one of these enumerated things into consideration in order to help them to determine what was a fair, just and reasonable wage to pay their employees for the services the latter rendered. The council would, in my view, fail in their duty if, in administering funds which did not belong to their members alone, they put aside all these aids to the ascertainment of what was just and reasonable remuneration to give for the services rendered to them, and allowed themselves to be guided in preference by some eccentric principles of socialistic philanthropy, or by a feminist ambition to secure the equality of the sexes in the matter of wages in the world of labour.

In para. 9 of the respondents' affidavit they are good enough to disclose what the council did take into consideration in fixing, the minimum rate of wages to be paid to their employees. It is said that they had from time to time considered the question of wages, and were of opinion that;

"a public authority should be a model employer, and that a minimum rate of 4 per week (i.e., +208 per annum) is the least wage which ought to be paid to an adult, having regard to the efficiency of their work-people, the duty of a public authority both to the ratepayers and to its employees, the purchasing power of the wages and other considerations which are relevant to their decisions as to wages".

They are not good enough to mention what are those other considerations. There is no provision relative to the nature of the work to be done by the women, or their fitness for it. The minimum wage was to be the same as that of men, however different the nature of the work.

This system of procedure might possibly be admirably philanthropic, if the funds of the council at the time they were thus administered belonged to the existing members of that body. These members would then be generous at their own expense. The evidence does not disclose what sum the rates of the district amounted to, or what portion of that gross sum was paid by the persons who were members of the council since, say, the month of March, 1920 ; but it may safely be assumed, I think, that these members did not, at any time, pay the whole of the rates then collected. The council, then, at all times since the year 1914 may safely be assumed to have been dealing with funds a portion of which possibly the larger portion of which-was contributed by ratepayers who were not and are not members of the council. The indulgence of philanthropic enthusiasm at the expense of persons other than the philanthropists is an entirely different thing from the indulgence of it at the expense of the philanthropists themselves. The former wears quite a different aspect from the latter, and may bear a different legal as well as a moral character. A body charged with the administration for definite purposes of funds contributed in whole or in part by persons other than the members of that body owes, in my view, a duty to those latter persons to conduct that administration in a fairly businesslike manner, with reasonable card, skill, and caution, and with a due and alert regard to the interest of those contributors who are not members of the body. Towards these latter persons the body stands somewhat in the position of trustees or managers of the property of others. This duty is, I think, a legal duty as well as a moral one, and acts done in flagrant violation of it should, in my view, be properly held to have been done contrary to law" within the meaning of s. 247 (7) of the Public Health Act, 1875....

[A]s wages are remuneration for services, the words "think fit" [in s.62] must, I think, be construed to mean "as the employer shall think fitting and proper" for the services rendered. It cannot, in my view, mean that the employer, especially an employer dealing with moneys not entirely his own, may pay to his employee wages of any amount he pleases. Still less does it mean that he can pay gratuities or gifts to his employers disguised under the name of wages. The only rational way by which harmony of administration can be introduced into the various departments of local government covered by s. 62 of the Act of 1885, and by the several aforesaid more recent statutes, is by holding that in each and every case the payment of all salaries and wages must be "reasonable."....I do not think it necessary to comment on those maps or grades which show the rise of women's wages. It is enough to say that their wages having been raised from 23s.6d. to 80s. per week, are kept at that figure through the years 1921, 1922, and 1923.... What is a reasonable wage at any time must depend, of course, on the circumstances which then exist in the labour market. I do not say there must be any cheese-paring or that the datum line, as I have called it, must never be exceeded to any extent, and that employees may not be generously treated. But it does not appear to me that there is any rational proportion between the rate of wages at which the labour of these women is paid and the rates at which they would be reasonably remunerated for their services to the council. I concur with the auditor in thinking that what has been given to the women as wages are really to a great extent gifts and gratuities disguised as wages....