Case Facts
In 1972, Juan Godin-Mendoza began a same-sex relationship with a man referred to as W-J. In 1983, the couple moved into a flat owned by Ghaidan, where W-J became the statutory tenant under the Rent Act 1977. The two men lived together in a close and stable relationship in the manner of spouses, save that they were of the same sex.
Following W-J's death, which occurred after the Human Rights Act 1998 came into force, Ghaidan brought possession proceedings against Mendoza in the county court. The county court judge held that Mendoza could not succeed to the statutory tenancy as W-J's surviving "spouse" under paragraph 2 of Schedule 1 to the Rent Act 1977, because the House of Lords had previously held in Fitzpatrick v Sterling Housing Association Ltd [1999] that same-sex partners fell outside the scope of paragraph 2(2). Instead, the judge held that Mendoza was entitled only to an assured tenancy as a member of W-J's "family" under paragraph 3(1) of Schedule 1 — a significantly less advantageous form of tenure, providing weaker security of tenure and no protection against rent increases above market level.
Mendoza appealed. The Court of Appeal allowed the appeal and held that, read compatibly with the European Convention on Human Rights pursuant to s 3 of the Human Rights Act 1998, paragraph 2 of Schedule 1 to the Rent Act 1977 entitled Mendoza to succeed to the full statutory tenancy. Ghaidan, as appellant, appealed to the House of Lords.
The two key issues before the House of Lords were: first, whether paragraph 2 of Schedule 1 to the Rent Act 1977, as interpreted in Fitzpatrick, was incompatible with the ECHR; and second, if so, whether it could be construed compatibly with the ECHR under s 3 of the Human Rights Act 1998. The Convention rights in issue were Article 8 ECHR (the right to respect for a person's home) and Article 14 ECHR (the prohibition of discrimination in the enjoyment of Convention rights on grounds including sexual orientation, falling within "other status").
Held
The House of Lords, by a majority of four to one, dismissed Ghaidan's appeal and affirmed the Court of Appeal's decision. The majority comprised four members of the panel, with one dissent.
The majority held that paragraph 2 of Schedule 1 to the Rent Act 1977 must be read, pursuant to s 3 of the Human Rights Act 1998, so that the word "spouse" encompasses the surviving partner of a same-sex couple who had lived together in a close and stable relationship in the manner of husband and wife. On that reading, Mendoza was entitled to succeed to a statutory tenancy — not merely an assured tenancy under paragraph 3(1) — in respect of the flat.
The majority further held that treating Mendoza differently from a surviving heterosexual partner constituted unjustifiable discrimination under Article 14 read with Article 8 of the ECHR. Since marriage, parenthood, the presence of children, and procreative potential were no longer prerequisites for protection under paragraph 2, there was no legitimate aim capable of justifying the exclusion of same-sex partners from its scope.
One member of the panel dissented. That member took the view that reading "spouse" to encompass same-sex partners went beyond what was permissible interpretation under s 3 of the Human Rights Act 1998 and amounted to judicial legislation, which crossed the constitutional boundary that s 3 itself seeks to demarcate and preserve.
The majority did not overrule Fitzpatrick v Sterling Housing Association Ltd [1999], but departed from its interpretation of paragraph 2(2) by applying s 3 of the Human Rights Act 1998, which had not been available when Fitzpatrick was decided. Reference was also made to the Strasbourg authority of Karner v Austria (2003), which confirmed that discrimination on grounds of sexual orientation in the context of housing succession rights is incompatible with the ECHR.
Ratio Decidendi
The ratio of the majority decision rests on two interconnected limbs.
First limb — the scope and limits of s 3 of the Human Rights Act 1998. The majority held that Parliament's intention in enacting s 3 was to enable courts to modify the meaning, and hence the effect, of primary and secondary legislation to an extent bounded only by what is "possible". The fact that the natural and ordinary meaning of a statutory provision is inconsistent with a Convention-compliant interpretation does not, of itself, render a Convention-compliant reading impossible. Courts may therefore read words in, or read down, the language of a statute where necessary to secure compatibility with the Convention. However, the s 3 power has important constitutional limits: a court may not adopt a meaning that is inconsistent with a fundamental feature of the legislation under consideration, since to do so would cross the constitutional boundary that s 3 seeks to demarcate and preserve. The meaning imported under s 3 must also be compatible with the underlying thrust of the legislation being construed. Moreover, courts should not deploy s 3 to make choices that properly call for legislative deliberation — for instance, where achieving Convention-compliance could be accomplished in several different ways and the selection between them involves evaluative judgements of a kind for which Parliament, not the judiciary, is the appropriate institution.
Applying those principles to paragraph 2 of Schedule 1 to the Rent Act 1977, the majority held that, although the provision was unambiguous in its ordinary meaning, the social policy underlying the extension of security of tenure to the surviving member of an unmarried couple living together as husband and wife was equally applicable to the survivor of a same-sex couple living together in a close and stable relationship. No fundamental feature of the legislative scheme was contradicted by reading "spouse" to include such a person, and the reading was therefore "possible" within the meaning of s 3.
Second limb — discrimination under Article 14 read with Article 8 ECHR. The majority held that discrimination on grounds of sexual orientation is not acceptable as a basis for differential legal treatment. Paragraph 2 of Schedule 1 had long since ceased to require formal marriage; it extended protection to unmarried heterosexual couples regardless of whether they had children, had ever had children, or were capable of having children. The absence of any such requirements meant that the exclusion of same-sex couples from the scope of paragraph 2 could not be justified by reference to marriage, procreation, or parenthood. The difference in treatment accordingly did not pursue a legitimate aim and constituted unjustifiable discrimination under Article 14 ECHR read in conjunction with Article 8 ECHR.
Obiter Dicta
The majority offered a number of observations concerning the general approach to s 3 of the Human Rights Act 1998 that go beyond the facts of this particular case. It was noted that s 3 may require a court to depart from the unambiguous meaning that would otherwise be attributed to the language of a statute, and that this represents a strong interpretive obligation — stronger than the ordinary canon of construction requiring ambiguous provisions to be read in a Convention-compatible sense. The majority cautioned, however, against using s 3 in a manner that would in practice usurp the legislative function, and affirmed that the constitutional boundary between judicial interpretation and judicial legislation must be respected. These observations have since become the foundation of a wider body of case law and commentary on the relationship between the courts and Parliament in the context of the Human Rights Act 1998 framework.