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Case Note on Ghaidan v Godin-Mendoza [2004] UKHL 30 Outline Intro required The Facts 

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The Defendant, Mr Godin-Mendoza, lived in a lengthy, stable homosexual relationship with the tenant. How long? On the tenant’s death the landlord (Ghaidan) claimed possession of the property1 County Court: The Defendant was not classified as “a person who was living with the original tenant as his or her wife or husband” (entitled to ‘statutory tenancy’) 2 but as “a member of the original tenant’s family” (entitled to ‘assured tenancy’) under the Rent Act 1977 3 Counsel for Mendoza argued that his classification under para 3(1) and not para 2(2) of Schedule 1 of the Rent Act due to the relationship being homosexual was discriminatory (‘assured tenancy’ less secure) and breached Article 14 European Convention of Human Rights (ECHR)4 read in conjunction with Article 8 ECHR. Footnote required here to relevant para of the judgment for this point. Precedent - in Fitzpatrick v Sterling Housing Association Ltd 5 the House of Lords (HL) had interpreted para 2(2) not to include homosexual partners

The Decision and Ratio 

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The def appealed and the Court of Appeal found discrimination on the basis of sexual orientation, contradictory to Article 14 read with Article 8 ECHR:  8(1) “Everyone has the right to respect for his private and family life, his home and his correspondence.”  8(2) “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society” 6 Held - no such justification – discrimination. para 2(2) could be interpreted under s3(1) Human Rights Act7 (HRA) to comply with ECHR by reading "as his or her wife or husband" as "as if they were his or her wife or husband" Appealed by landlord on the basis that it’s legitimate to distinguish between homosexual and heterosexual partners, and the court should defer to Parliament Footnote required to relevant para of the judgment.

1 Ghaidan v Godin-Mendoza [2004] UKHL 30, per Lord Nicholls of Birkenhead para 2 2 Rent Act 1977 sch 1 para 2(2) 3 Rent Act 1977 sch 1 para 3(1) 4 European Convention on Human Rights 1950 5 Fitzpatrick v Sterling Housing Association Ltd [2001] 1 A.C. 27 6 European Convention on Human Rights 1950 7 Human Rights Act 1998 s3(1) - ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.’

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HL to consider whether the precedent set in Fitzpatrick8 “survived the coming into force of the HRA”9. 1 – Was the Act incompatible?  All judges placed heavy importance on equal treatment in democracy  Lord Nicholls –“Of course all law, civil and criminal, has to draw distinctions…” 10 “Here, the difference in treatment falls at the first hurdle: the absence of a legitimate aim”11 “Paragraph 2 fails to attach sufficient importance to the Convention rights of cohabiting homosexual couples.”12 2 – Was it appropriate to reinterpret the provisions of the Act to reach a Conventioncompliant meaning under s3(1) HRA?  Majority found that to do so would not contradict the principles of the 1977 Act, finding that homosexual partners share an “equivalent relationship” 13 to heterosexuals living as man and wife, especially as by enacting Schedule 2(2) Parliament ceased to draw the line at marital status.14 The social policy of this provision applies equally to unmarried couples of either sexual orientation. 15  Fitzpatrick16 distinguished on the basis of the more recent effect of the HRA Decision– landlord’s appeal dismissed, defendant afforded statutory tenancy under schedule 1 para 2(2) Rent Act 1977 Ratio summary – homosexual relationships included under schedule 1 para 2(2) as not to do so amounts to unjustifiable discrimination contrary to Art 14 with Art 8

Implications 

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Answers a previously contested matter by demonstrating the “horizontal effect” of the s3(1) interpretive obligation regarding matters between private individuals17 (HRA places obligation on “public authorities” only)18. Academic commentator David Mead believes this case won’t be the “the final word” on “publicly infused private law” 19 – not fully developed Allowed HRA to have a retrospective effect regarding ‘individuals whose private law relationships came into existence before October 2000’ 20 despite Lord Nicholls’ statement in Wilson that “Parliament cannot have intended that the application of s.3(1) should have the effect of altering parties' existing rights and obligations.” 21

8 Op. cit. n.9 9 Turpin & Tompkins (2012) British Government and the Constitution. New York, Cambridge University Press, pp.83 10 Ghaidan UKHL op cit, per Lord Nicholls of Birkenhead para 9 11 Ibid., para 18 12 Ibid., para 20 13 Ibid., para 18 14 Ghaidan v Godin-Mendoza [2004] UKHL 30, per Lord Rodger of Earlsferry para 128, Lord Nicholls of Birkenhead para 16 15 Op. cit., n.16 para 35 16 Op. cit., n.9 17 Op. cit. n.15 p.766 18 Human Rights Act 1998 s6 19 Mead, D. (2005) “Rights, relationships and retrospectivity: the impact of Convention rights on pre- existing private relationships following Wilson and Ghaidan” Public Law, pp.459-466 20 Ibid. 21 Wilson v First County Trust Ltd (No.2) [2003] UKHL 40, per Lord Nicholls of Birkenhead para 22

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By reinterpreting non-ambiguous statute the court shed new light on s3(1) – less restrictive approach more concerned by fundamental features of the statute, Parliament’s intention and the need for Convention-compatible interpretations than specific ‘linguistic constraints’ 22

Subsequent Developments   

Civil Partnership Act 2004 renders discussion moot – new relationship of “civil partners” created, own specific tenancy provisions23 Discussion of ambit of Article 14 soon approved and applied24 Judges still making great use of discussion of the extent to which it is appropriate to use s3(1)25

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Lord Millett’s dissenting view on the use of s3(1) – “any change in a fundamental constitutional principle should be the consequence of deliberate legislative action and not judicial activism.”26 Found the interpretation given “impossible”27 – concerns for parliamentary supremacy cf. Young’s view that the decreasingly linguistically focussed analysis allows the courts to balance the needs of the Convention against the principles of the statute 28 Mead’s view that the failure to consider retrospective effect in “backdating Convention rights” and altering existing rights and obligations welcomes criticism 29

Conclusion needed

22 Young (2005) “Ghaidan v Godin-Mendoza: Avoiding the Deference Trap”, Public Law, pp23-34 Also see Ghaidan v Godin-Mendoza [2004] UKHL 30, per Lord Rodger of Earlsferry para 122 23 Civil Partnership Act 2004 s81 24 R.(on the application of Morris) v Westminster City Council (No.3) [2004] EWHC 2191 (Admin), The Honourable Mr Justice Keith paras 8 & 32 25 R. v Webster (Matthew) [2010] EWCA Crim 2819, Lord Justice Pitchford paras 28-31 26 Ghaidan v UKHL op cit, per Lord Millett para 57 27 Ibid., para 67 28 Young, op. cit., n.28 29 Mead, op. cit., n.25

Bibliography Turpin & Tompkins (2012) British Government and the Constitution. New York, Cambridge University Press Mead, D. (2005) “Rights, relationships and retrospectivity: the impact of Convention rights on preexisting private relationships following Wilson and Ghaidan” Public Law, pp.459-466 Young (2005) “Ghaidan v Godin-Mendoza: Avoiding the Deference Trap”, Public Law, pp23-34

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