Ghaidan v Godin-Mendoza

The House of Lords held that Schedule 1 paragraph 2 of the Rent Act 1977, as conventionally construed following Fitzpatrick, treated surviving partners in same-sex relationships less favourably than surviving spouses or opposite-sex cohabitants and thus engaged article 14 read with article 8 of the European Convention on Human Rights. The majority concluded there was no adequate justification for that difference in treatment. Applying section 3 of the Human Rights Act 1998 the court read paragraph 2 so as to include persons living with the original tenant in a close and stable same-sex relationship, thereby removing the discriminatory effect and entitling the respondent to succeed as a statutory tenant.

Background and facts:

• Mr Hugh Wallwyn-James held an oral residential tenancy of a basement flat. He lived in a stable, monogamous homosexual relationship with Mr Juan Godin-Mendoza until Mr Wallwyn-James' death on 5 January 2001. Mr Godin-Mendoza continued to occupy the flat.
• The landlord, Mr Ahmad Ghaidan, sought possession. At first instance Judge Cowell held Mr Godin-Mendoza was not a statutory tenant under Schedule 1 paragraph 2 of the Rent Act 1977 but might obtain an assured tenancy under paragraph 3.
• The Court of Appeal ([2002] EWCA Civ 1533) allowed the appellant's appeal and held the respondent was entitled to succeed under paragraph 2; the landlord appealed to the House of Lords.

Nature of the claim and relief sought:

• Mr Godin-Mendoza relied on the Human Rights Act 1998 and the Convention to contend that paragraph 2(2) should be read to include same-sex partners so that he succeeded as a statutory tenant rather than only being eligible (in competition) for an assured tenancy under paragraph 3.

Issues framed by the court:

• Whether paragraph 2, as conventionally interpreted, engaged article 14 read with article 8 and discriminated on the ground of sexual orientation; and if so whether any objective and proportionate justification existed.
• Whether, and to what extent, section 3 of the Human Rights Act 1998 required the court to read paragraph 2 so as to include same-sex cohabitants, bearing in mind constitutional limits on judicial interpretation.

Court's reasoning (concise):

• The majority found paragraph 2(2) created unjustified differential treatment between survivors of heterosexual and homosexual cohabitation and that no sufficient legitimate aim justified the distinction.
• Section 3 was examined at length. The majority (Lord Nicholls, Lord Steyn, Baroness Hale, Lord Rodger) adopted a purposive and substantive approach to section 3: where possible courts must read legislation compatibly with Convention rights even if this requires reading in words, provided this does not contradict a fundamental feature or scheme of the statute. Applying that approach, paragraph 2 should be read so as to include those in close and stable same-sex relationships.
• Lord Millett dissented, considering the words and legislative history showed that Parliament intended to protect openly opposite-sex spouse-like relationships and that reading the provision to include same-sex couples crossed the boundary from interpretation into amendment better left to Parliament.

Context and implications:

• The House emphasised the remedial structure of the Human Rights Act: section 3 is the principal means to secure compatibility where possible and section 4 declarations are exceptional. The decision illustrates the scope and limits of section 3 in reconciling parliamentary supremacy and Convention obligations.

Appeal dismissed. The House held that Schedule 1 paragraph 2(2) of the Rent Act 1977, construed without reference to section 3 HRA, discriminated on grounds of sexual orientation in breach of article 14 taken with article 8. Applying section 3 of the Human Rights Act 1998 it was possible and appropriate to read paragraph 2 so as to treat a person living with the original tenant in a close and stable same-sex relationship as the surviving spouse for succession to the statutory tenancy. Lord Millett dissented, considering such an extension impermissibly to amend the statute.

County Court (West London) — Judge Cowell: held respondent was not a statutory tenant under Schedule 1 para 2 but might be entitled to an assured tenancy under para 3. Court of Appeal allowed the respondent's appeal: [2002] EWCA Civ 1533; [2003] Ch 380. House of Lords: appeal dismissed, [2004] UKHL 30; [2004] 2 AC 557.