Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557

Case title and citation:

Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

Court:

• House of Lords

Bench:

• Lord Nicholls
• Lord Steyn
• Lord Millett
• Lord Rodger
• Baroness Hale

Bench Type:

• Appellate panel of five Law Lords of the House of Lords

Judgment Date:

21 June 2004

Parties Involved:

Claimant: Ahmed Ghaidan, a landlord seeking possession of the flat after the original tenant, Hugh Wallwyn-Jones, died. Ghaidan argued that tenancy under paragraph 2(2) of Schedule 1 of the Rent Act 1977 (RA 1977) only extended to living spouses, not same-sex partners.[1]

Defendant: Juan Godin-Mendoza, the surviving same-sex partner of the deceased tenant. Godin-Mendoza was seeking succession of the flat after his partner died.[2]

Facts of the case:

Juan Godin-Mendoza had been living with his same-sex partner, Hugh Wallwyn-Jones, in a flat for 29 years. After Wallwyn-Jones died, Godin-Mendoza intended to continue living in the flat. However, the landlord, Ahmed Ghaidan, aimed to evict Godin-Mendoza from the flat because Godin-Mendoza was not married to Wallwyn-Jones.[3] Under Schedule 1, paragraph 2(2) of the RA 1977, tenancy was given to the living wife or husband of the deceased tenant, but it did not include same-sex partners.[4] Godin-Mendoza argued that the difference in treatment towards him violated Article 14 (prohibition of discrimination)[5] and Article 8 (respect for private and family life) of the European Convention on Human Rights (ECHR).[6] This is because Ghaidan’s denial of secure tenure towards Godin-Mendoza based on his sexual orientation was discriminatory,[7] hence disregarding Godin-Mendoza’s right to private and family life in the flat.[8] This went to the House of Lords, who assessed whether they could interpret Schedule 1, paragraph 2(2) of the RA 1977 under section 3 of the Human Rights Act 1998 (HRA 1998) to avoid discrimination based on sexual orientation, thus protecting Godin-Mendoza’s tenancy rights.[9]

Issues Raised

• Whether a statutory provision, such as paragraph 2(2) of Schedule 1 of the RA 1977, that differentiates between heterosexual and homosexual relationships was discriminatory under Article 14 when combined with Article 8 of the ECHR.
• Whether section 3 of the HRA 1998 empowered courts to depart from the literal interpretation in the statute to ensure compatibility with Convention rights under the ECHR.
• Whether interpreting legislation under section 3 of the HRA 1998 risks courts overstepping their judicial role and overtaking Parliament’s legislative role, possibly causing imbalance between Parliament and the judiciary.

Arguments of the Claimant

Ghaidan argued that Godin-Mendoza could not succeed as the tenant to Wallwyn-Jones’ flat because Schedule 1, paragraph 2(2) of the RA 1977 specified that tenancy is given to someone living with the original tenant as their wife or husband.[10] Ghaidan claimed that Parliament in 1977 only intended to apply this tenancy right to heterosexual marriages, not homosexual couples.[11] Interpreting it differently would constitute the courts amending legislation rather than interpreting legislation, which exceeds judicial powers because amending laws is Parliament’s role.[12] Ghaidan disputed that if the provisions of the RA 1977 were incompatible with the ECHR, a declaration of incompatibility under section 4 of the HRA 1998 should be submitted to inform Parliament to amend the provisions, rather than seeking legislative reinterpretation from the courts.[13] Furthermore, allowing same-sex partners succession rights to tenancy would change the Act’s purpose of protecting the family’s tenancy rights.[14]

Arguments of the Defendant

Godin-Mendoza had been living with his partner, Hugh Wallwyn-Jones, for 29 years in a monogamous relationship. This was argued to constitute a heterosexual marriage because of its long-term cohabitation and monogamy.[15] Godin-Mendoza argued that prohibiting him from gaining the tenancy based on his homosexuality was discriminatory, thus breaching Article 14 and Article 8 of the ECHR.[16] Following the enactment of the HRA 1998, section 3 urges courts to interpret legislation as accurately as possible in a way that is compatible with rights under the ECHR.[17] Godin-Mendoza claimed that this judicial requirement was extensive enough to permit an interpretation that included homosexual couples.[18] Moreover, the purpose of the RA 1977, which is protecting the family’s tenancy rights, would not be frustrated if it considered same-sex partners.[19]

Judgment

The House of Lords, by a majority, allowed Godin-Mendoza’s defence. It was held that, under section 3 of the HRA 1998, Schedule 1, paragraph 2(2) of the RA 1977 can extend succession rights to same-sex partners.[20] This is because the Law Lords acknowledged that a literal interpretation of Schedule 1, paragraph 2(2) of the RA 1977 would only grant tenancy rights to wives and husbands.[21] The Law Lords agreed that this prevented homosexual couples from possessing the same tenancy rights as heterosexual marriages, which would be discriminatory,[22] thus infringing Article 14[23] and Article 8 of the ECHR.[24] Applying section 3 of the HRA 1998 ensured that same-sex partners owned the same tenancy rights as heterosexual spouses, which established compatibility with Convention rights.[25] However, Lord Millett dissented because he suggested that a declaration of incompatibility under section 4 of the HRA 1998 was preferable.[26] Despite his dissent, the House of Lords ruled that Ghaidan could not evict Godin-Mendoza because surviving same-sex partners had the same succession rights to tenancy as heterosexual spouses.[27]

Legal Reasoning

Although Fitzpatrick v Sterling Housing Association Ltd[28] previously established that same-sex partners could be family members but not spouses, it predated the HRA 1998.[29] Lord Nicholls clarified that the enactment of section 3 of the HRA 1998 empowered courts to adopt alternative interpretations if a literal interpretation of the statute threatens Convention rights.[30] The House of Lords recognised that a literal interpretation of Schedule 1, paragraph 2(2) of the RA 1977 excluded same-sex partners from possessing the same tenancy rights as heterosexual spouses.[31] This would be discriminatory under Article 14 because excluding homosexual partners, like in Karner v Austria (40016/98),[32] would deny the tenant’s family members, such as same-sex partners,[33] the right to private and family life under Article 8.[34] Baroness Hale emphasised that long-term homosexual relationships constituted family life deserving of legal protection under Article 8,[35] such as the ECtHR ruling that a homosexual father remained entitled to child custody in Salgueiro da Silva Mouta v Portugal (33290/96).[36] Therefore, the House of Lords applied section 3 of the HRA 1998 to include same-sex partners as succeeding tenants because it maintained the Act’s purpose of protecting the family’s tenancy rights while avoiding discrimination.[37] However, the ruling highlighted constitutional tensions between the court’s role as the judiciary and Parliament’s role as the legislature.[38] Lord Millett dissented that including same-sex partners in Schedule 1, paragraph 2(2) of the RA 1977 amounted to the courts overstepping judicial boundaries by amending legislation,[39] risking the separation of powers between the courts and Parliament.[40] This is because he presumed that Parliament’s intention was to grant tenancy rights to heterosexual partners only.[41] Although he agreed that the literal interpretation was discriminatory, he preferred a declaration of incompatibility under section 4 of the HRA 1998 because that is within the boundaries of judicial powers.[42] Overall, the Law Lords agreed that the literal interpretation of Schedule 1, paragraph 2(2) of the RA 1977 was discriminatory.[43] Therefore, they finalised that the RA 1977 must include same-sex partners as succeeding tenants to prevent incompatibility with Convention rights.[44]

Conclusion

This ruling recognised that literal interpretations of provisions that exclude same-sex partners, such as paragraph 2(2) of Schedule 1 of the RA 1977, are discriminatory under Article 14 and incompatible with rights under Article 8 of the ECHR.[45] Consequently, these discriminatory provisions were subject to the application of section 3 of the HRA 1998.[46] This empowered the House of Lords to depart from the literal interpretation to extend equal tenancy rights to same-sex partners.[47] This established compatibility with Convention rights by ensuring legal protection for the family life of homosexual relationships.[48] Although this decision reinforced the court’s judicial role in upholding Convention rights, the ruling was criticised for overstepping the limits of judicial powers.[49] Critics aligned with Lord Millett’s view argued that this ruling may authorise courts to amend legislation,[50] possibly undermining parliamentary sovereignty and blurring the separation of powers.[51] Moreover, scholars argue that the judicial powers under section 3 of the HRA 1998 may cause conflict between Parliament and the courts because of the potential differences in interpretations between courts and Parliament.[52] Despite the criticisms, the ruling in Ghaidan[53] is considered significant in influencing courts to promote human rights under domestic law while upholding parliamentary sovereignty.[54]

Bibliography

 Statute:

• Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights)
• Human Rights Act 1998
• Rent Act 1977

Case law:

• Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27, [1999] 3 WLR 1113.
• Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.
• Karner v Austria (40016/98) (2004) 38 EHRR 24.
• Salgueiro da Silva Mouta v Portugal (33290/96) (2001) 31 EHRR 47.

Books:

• Parpworth N, Constitutional and Administrative Law (12^th edn, OUP 2022).

Journal articles:

• Debeljak J, ‘Parliamentary Sovereignty and Dialogue under the Victorian Charter of Human Rights and responsibilities: drawing the line between judicial interpretation and judicial law-making’ (2007) 33 (1) Monash University Review 10.
• Klug F, ‘Judicial deference under the Human Rights Act 1998’ (2003) (2) European Human Rights Law Review 125.
• Mallory C and Tyrrell H, ‘Discretionary Space and Declarations of Incompatibility’ (2021) 32 (3) King’s Law Journal 467.

[1] Rent Act 1977 (RA 1977) Sch 1, para 2(2).

[2] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[3] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[4] RA 1977 Sch 1, para 2(2).

[5] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 14.

[6] Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) art 8.

[7] Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) art 14.

[8] Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) art 8.

[9] Human Rights Act 1998 (HRA 1998) s 3.

[10] RA 1977 Sch 1, para 2(2).

[11] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[12] Neil Parpworth, Constitutional and Administrative Law (12^th edn, OUP 2022) 21.

[13] HRA 1998 s 4.

[14] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[15] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[16] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[17] HRA 1998 s 3.

[18] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[19] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[20] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[21] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[22] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[23] Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) art 14.

[24] Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) art 8.

[25] Ghaidan v Godin-Mendoza [2004] UHKL 30, [2004] 2 AC 557.

[26] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[27] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[28] [2001] 1 AC 27, [1999] 3 WLR 1113.

[29] Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27, [1999] 3 WLR 1113.

[30] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[31] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[32] (2004) 38 EHRR 24.

[33] Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27, [1999] 3 WLR 1113.

[34] Karner v Austria (40016/98) (2004) 38 EHRR 24.

[35] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[36] (2001) 31 EHRR 47.

[37] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[38] Parpworth (n12) 30.

[39] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[40] Parpworth (n12) 21.

[41] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[42] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[43] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[44] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[45] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[46] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[47] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[48] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

[49] Julie Debeljak, ‘Parliamentary Sovereignty and Dialogue under the Victorian Charter of Human Rights and responsibilities: drawing the line between judicial interpretation and judicial law-making’ (2007) 33 (1) Monash University Review 10, 11.

[50] Conall Mallory and Helene Tyrrell, ‘Discretionary Space and Declarations of Incompatibility’ (2021) 32 (3) King’s Law Journal 467, 471.

[51] Debeljak (n49) 11.

[52] Francesca Klug, ‘Judicial deference under the Human Rights Act 1998’ (2003) (2) European Human Rights Law Review 125, 127.

[53] [2004] UKHL 30, [2004] 2 AC 557.

[54] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.