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Ghaidan v Godin-Mendoza [2004] UKHL 30, The Times, 24 June 2004
In Ghaidan, the House of Lords has given what is probably its most important judgment on the Human Rights Act 1998 (HRA) to date. Interestingly, the case concerned not the relationship between an individual and a public authority but the legal relations between two private individuals.
Mr Mendoza lived with his partner Mr Wallwyn-James in a flat in west London, of which Mr Wallwyn-James had a statutory tenancy. On Mr Wallwyn-James's death, the landlord sought possession. Mr Mendoza claimed that he was entitled to succeed to the statutory tenancy.
Before the coming into force of the HRA, the House of Lords had ruled in Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27. In that case, the Lords ruled that a person living with the tenant in a stable and monogamous same-sex relationship was to be regarded as a member of the tenant's family within the meaning of paragraph 2(3) of schedule 1to the Rent Act 1977, and therefore entitled to an assured tenancy of the property. But the Lords had rejected the argument that such a person was to be regarded as a 'surviving spouse' who was entitled to succeed to the more advantageous statutory tenancy. Although paragraph 2(2) extended the term 'spouse' to a person who was 'living with the original tenant as his wife or her husband',the Lords had held that these words implied persons of the opposite sex.
The County Court judge had followed Fitzpatrick and awarded Mr Mendoza an assured tenancy. But on appeal the Court of Appeal had considered that it was not bound by Fitzpatrick, since Mr Wallwyn-James had died after the HRA came into force. Relying on the HRA, it held unanimously that Mr Mendoza was to be treated as his 'spouse' and, therefore, entitled to succeed to the statutory tenancy.
There were two issues before the House of Lords. First, it decided unanimously that the interpretation of paragraph 2 in Fitzpatrick amounted to unjustified discrimination between heterosexual couples and same-sex couples in the enjoyment of the right to respect for the home (article 8 of the European Convention on Human Rights).
Although article 8 imposes no positive obligation to provide a home, where the law allows succession to tenancies, it must do so without unjustifiable discrimination. In her speech, Baroness Hale made clear that sexual orientation is a 'suspect ground', which means that distinctions based on it must be strictly justified. None of the Lords could see a justification for the difference of treatment that characterised the Rent Act. The case is significant for its clear statement of the importance of equality law, and for its disavowal of a formulaic approach to discrimination issues in favour of one of broad principle.
The Lords then had to decide whether it was possible, using section 3 of the HRA, to read and give effect to paragraph 2(2), the 'spouse' provision, in a way which would remove the discrimination and, therefore, ensure compatibility with article 14 of the convention.
If it was possible, Mr Mendoza would secure his statutory tenancy. If it was impossible, the Lords could only declare, under section 4 of the HRA, that paragraphs 2(1) and 2(2) were incompatible with Mr Mendoza's convention rights, but he would lose the case.
The Lords broadly agreed on the principles to be applied in relying on section 3 of the HRA (although Lord Millett differed in the result). All accepted that Parliament had intended to impose a broad duty to do everything possible to achieve compatibility through interpretation, with declarations of incompatibility being a remedy of last resort, to be made only rarely. Section 3 is not limited to cases where a statutory provision is ambiguous - it comes into play in any case where interpretation using normal principles would lead to breach of convention rights.
Not only does section 3 apply in the widest possible circumstances; it also allows resort to the widest possible interpretative techniques, including reading down existing provisions and even reading into them words which change their meaning. Reference was made to leading EU cases, in which the courts have subjected statutes to major surgery to ensure compatibility with European law.
However, perhaps most important, the Lords explained that the process of reading and giving effect was not a linguistic or semantic exercise, but one of constitutional adjudication. Therefore, decision as to what was possible could not depend on the precise wording of the provision to be construed.
Lord Nicholls explained that 'once it is accepted that section 3 may require legislation to bear a meaning which departs from the unambiguous meaning the legislation would otherwise bear, it becomes impossible to suppose Parliament intended that the operation of section 3 should depend critically upon the particular form of words adopted by the parliamentary draftsman in the statutory provision under consideration. That would make the application of section 3 something of a semantic lottery.'
The Lords accepted that in such a case, section 3 might require a court to depart from the legislative intention of the provision in issue. The question was how far it was possible to do so.
The judges made clear that the limits of what is possible are those of constitutional propriety rather than semantic serendipity - compatible interpretation is 'possible' even where it involves substantial modification of the statutory words.
Drawing together its own previous decisions, the Lords articulated two limits. First, compatible interpretation is not possible where it is inconsistent with a fundamental feature of the scheme of the legislation in question. For example, it was impossible to introduce a system of court supervision of local authority execution of care plans where the legislation had deliberately excluded recourse to the court once a care order had been made (see In re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291). Secondly, compatible interpretation would be impossible where the legislation in issue had wide ramifications, raising policy issues ill-suited for determination by the courts or court procedures, for example the recognition of transsexuals (see Bellinger v Bellinger [2003] 2 AC 467). These were the only limitations on what is possible that the Lords envisaged.
Throughout the speeches of the majority, emphasis was placed on the broad approach rather than on linguistic approach. Indeed, Lords Nicholls and Rodger declined to give a precise reformation of the statutory words, indicating
simply that paragraph 2 was to be read and given effect as though the survivor of a homosexual couple was the surviving spouse of the original tenant. For Lord Nicholls, 'the precise form of words read in for this purpose is of no significance. It is their substantive effect that matters'.
The case gives welcome guidance. It adopts a principled approach to section 3 that is intellectually coherent, constitutionally sound and in accordance with the structure of the Human Rights Act. It marks a move away from what has been described as the 'austerity of tabulated legalism' and towards a form of constitutional adjudication based on the twin pillars of the supremacy of human rights and the sovereignty of Parliament.
By Stephen Grosz, Bindman & Partners, London
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