Ghaidan v Godin-Mendoza

Facts

Godin-Mendoza lived with Wallwyn-James in a flat for many years as his same-sex partner. Wallwyn-James was the statutory tenant under the Rent Act 1977. When he died, the landlord, Ghaidan, claimed possession, arguing that Godin-Mendoza could not succeed to the statutory tenancy because paragraph 2 of Schedule 1 to the Act gave that right only to a person living with the original tenant as his or her wife or husband. In an earlier decision, Fitzpatrick, the House of Lords had held that a same-sex partner did not come within that paragraph, though he could be a member of the family for a lesser form of succession.

History

The county court held that Godin-Mendoza could not succeed as the paragraph did not apply to same-sex partners. The Court of Appeal allowed his appeal, holding that section 3 of the Human Rights Act 1998 required the paragraph to be read as covering same-sex partners. The landlord appealed to the House of Lords.

Issue

Whether the treatment of the survivor of a same-sex couple as outside paragraph 2 of Schedule 1 to the Rent Act 1977 was incompatible with Article 14 read with Article 8 of the Convention, and, if so, whether the paragraph could and should be interpreted under section 3 of the Human Rights Act 1998 to include same-sex partners, or whether the only remedy was a declaration of incompatibility.

Held

Appeal dismissed by a majority of 4 to 1. The difference in treatment was discrimination contrary to Article 14 with Article 8, and paragraph 2 of Schedule 1 to the Rent Act 1977 could and should be read, under section 3, as if the words living with the tenant as his or her wife or husband covered a person living with the tenant as if they were his wife or husband, so that Godin-Mendoza was entitled to succeed.

Ratio

• Section 3 of the Human Rights Act 1998 requires a court to read and give effect to legislation in a way that is compatible with Convention rights so far as it is possible to do so. This is a strong interpretative obligation which is not limited to cases of ambiguity and may require the court to depart from the unambiguous meaning of the words and the intention of the legislature when the Act was passed.
• The limit of the obligation is that the court may not adopt a meaning inconsistent with a fundamental feature of the legislation, or that goes against its grain, or that would require a choice between different solutions that belong to Parliament. A reading that brings same-sex partners within the paragraph is consistent with the purpose of the statutory succession provision.

The judgments

Key reasoning

• The previous decision in Fitzpatrick showed that, on the ordinary meaning, the paragraph did not cover same-sex partners, but the exclusion of surviving same-sex partners from the more favourable succession right was a difference of treatment based on sexual orientation, which could not be justified.
• Section 3 does not depend on ambiguity, and the court must ask whether a Convention-compatible meaning is possible, even if it is a meaning that differs from what Parliament intended when it passed the Act.
• The reading adopted preserved the essential purpose of the paragraph, which is to protect the survivor of a stable couple who lived together as a family, and did not undermine a fundamental feature of the legislation.

Where it fits in the module

In the topic on interpretation of legislation under the Human Rights Act, the case sets out the approach to section 3 and the contrast with a declaration of incompatibility under section 4. It raises the question whether the radical reading of statutes by the courts is compatible with parliamentary sovereignty, and how the courts decide what is a fundamental feature or the grain of a statute. The earlier decisions in Re S and Bellinger v Bellinger, which set limits to section 3, and the later control order decision in MB, show the boundaries.

Criticisms

• The approach allows the court to rewrite legislation under the guise of interpretation, which strains the distinction between interpretation and amendment and undermines the democratic role of Parliament, which the declaration of incompatibility procedure was designed to protect.
• The limits of the obligation, such as going against the grain of the statute and respecting a fundamental feature, are vague, and the outcome depends on the view of the judges about the statute, which makes it difficult to predict when section 3 can be used.
• The dissent of Lord Millett suggests that the majority gave the paragraph a meaning at odds with the purpose of the original provision, which was drafted with traditional marriage in mind, so the result is legislative in character.