Ghaidan (Appellant) v. Godin-Mendoza (FC) (Respondent)

Article 14 prohibits unjustified discrimination within the ambit of another Convention right. Where legislation grants succession rights to unmarried, marriage-like opposite-sex couples, equivalent same-sex couples cannot receive less favourable treatment merely because of sexual orientation.

Section 3 of the Human Rights Act 1998 may require an enactment to bear a Convention-compliant meaning even where its ordinary language is unambiguous. Courts may read words in or modify their effect. They may not contradict a fundamental feature or underlying thrust of the legislation, or make choices requiring legislative deliberation. Accordingly, statutory tenancy succession for a person living with the tenant as a spouse extended to a person in an equivalent close and stable same-sex relationship.

Mr Ahmad Ghaidan sought possession of a flat after its protected tenant, Mr Hugh Wallwyn-James, died. The respondent, Mr Juan Godin-Mendoza, had lived there with the tenant in a stable and monogamous same-sex relationship. The West London County Court held that he did not succeed as a statutory tenant under paragraph 2 of Schedule 1 to the Rent Act 1977, but obtained the less advantageous assured tenancy available to a family member under paragraph 3(1).

The Court of Appeal allowed Mr Godin-Mendoza's appeal: [2002] EWCA Civ 1533; [2003] Ch 380. Mr Ghaidan appealed to the House of Lords. The central issues were whether the difference between same-sex and opposite-sex couples infringed article 14 read with article 8, and whether section 3 of the Human Rights Act 1998 permitted paragraph 2 to be given a Convention-compliant meaning.

1. Appeal dismissed by a majority of four to one. Lord Nicholls delivered the leading speech. Lord Steyn, Lord Rodger and Baroness Hale agreed that Mr Godin-Mendoza succeeded to the statutory tenancy under paragraph 2 of Schedule 1 to the Rent Act 1977.

2. Per Lord Nicholls, with the majority agreeing, paragraph 2 fell within the ambit of the article 8 right to respect for the home. It gave the survivor of an unmarried opposite-sex couple more favourable succession rights than the survivor of an equivalent same-sex couple. Sexual orientation was the decisive ground of difference. Such a distinction required a legitimate aim and a reasonable relationship of proportionality to that aim. No legitimate aim existed. The statutory protection had already moved beyond marriage and did not depend upon parenthood, children or procreative capacity.

3. Baroness Hale explained that opposite-sex and same-sex survivors were analogous where each relationship possessed marriage-like intimacy, stability and social and financial interdependence. Protection of the traditional family could not justify preferring one type of unmarried, marriage-like relationship over another. Differential treatment on a suspect ground such as sexual orientation required careful scrutiny.

4. Per Lord Nicholls, section 3 of the Human Rights Act 1998 imposes an unusual and far-reaching interpretative obligation. Ambiguity is unnecessary. Courts may read legislation restrictively or expansively and may imply words which change its meaning. The resulting meaning must remain compatible with the legislation's underlying thrust and must go with its grain. Section 3 does not permit a court to contradict a fundamental feature of the scheme or decide matters requiring legislative deliberation. Lord Steyn treated section 3 as the primary remedial measure and a declaration under section 4 as a remedy of last resort. Lord Rodger emphasised substance rather than the number or precise form of words implied.

5. Those limits were not crossed. Extending paragraph 2(2) to an equivalent close and stable same-sex relationship furthered the same policy that Parliament had adopted when it protected unmarried opposite-sex couples. It involved no contrary cardinal principle or unmanageable practical repercussions. Paragraph 2 was therefore to be read as treating a person who had lived with the original tenant in such a same-sex relationship as the tenant's spouse.

6. Lord Millett dissented on section 3 while agreeing that the discrimination was unjustified. He considered opposite sex to be an essential, implicit feature of the statutory language and legislative history. In his view, extending paragraph 2 to same-sex couples contradicted the scheme and resolved social-policy questions reserved to Parliament. He would have allowed the appeal.

• House of Lords: In Ghaidan v Godin-Mendoza [2004] UKHL 30, the landlord's appeal was dismissed by a majority of four to one. The Court of Appeal's order was affirmed.
• Court of Appeal: The respondent's appeal was allowed. He was held entitled to succeed as a statutory tenant under paragraph 2 of Schedule 1 to the Rent Act 1977: [2002] EWCA Civ 1533; [2003] Ch 380.
• West London County Court: Judge Cowell held that the respondent did not succeed as a statutory tenant under paragraph 2, but became entitled to an assured tenancy as a member of the original tenant's family under paragraph 3(1).