Analysis of Ghaidan vs Godin-Mendoza - Case Study Example

The case of Ghaidan v Godin-Mendoza [2004] UKHL 30, is a landmark case both in terms of the historical application of the Human Rights Act 1998 (HRA)and in the manner that statutory interpretation gives effect to convention rights. According to Wright, in making judgments in legal disputes, "in the end he may find that justice requires some modification of the rules apparently settled by the cases", because "[a] good judge is the one who is the master, not the slave, of the cases" (cited in Duxburry, 2004, p. 65). However, since statutory interpretation does not entail legislation and must comply with current statues, the extent that judges can modify these rules and the cases where they are applicable to by virtue of interpretation is not only a subject of debate, but also in danger of judicial vandalism and usurpation of the powers of the Parliament. The difficulty of this issue is illustrated in the aforementioned case where Article 3 of the HRA was invoked. According to Article 3 of the HRA, "[s]o far as possible to do so, primary legislations and secondary legislation should be read and given effect in a way which is compatible with Convention rights" (HRA 1998, Art 3), referring to the European Convention on Human Rights and Fundamental Freedoms. By virtue of this provision, the conventional manner that statutory interpretation under the act, is therefore challenged, such that instead of giving effect to the intention of the legislators, which enacted particular statutes; statutory interpretation must now proceed in a manner that gives effect to the original intent of those who crafted the HRA provision. This shift away from the conventional procedure, therefore leads judges to stray in the grey area between judicial interpretation and law making, which endangers them of judicial vandalism and usurpation Parliament's will. Thus, given the sensitive scenario in question, this essay therefore aims to assess the manner that judgement was passed in Ghaidan v Godin-Mendoza (2004) to determine whether statutory interpretation was appropriate, or whether judicial vandalism was applied. In this regard, this essay argues that the decision arrived at by the honourable judges of the case was an exercise of judicial interpretation, which in the given scenario presents an appropriate and effective, although complex, manner to respond to social changes. In Ghaidan v Godin-Mendoza [2004], the House of Lords dismissed an appeal by Ahmad Ghaidan to overturn a previous decision of the Court of Appeal; which named Juan Godin-Mendoza as successor to the tenancy of the flat Godin-Mendoza lived in until the death of his partner of the same sex by interpreting the words "as his or her wife or husband" under the Rent Act 1977 to mean "as if they were his wife or husband" by virtue of Art 3 of the HRA (Ghaidan v Godin-Mendoza [2004], para. 51). The decision to dismiss the appeal was arrived at, by virtue of the judges' interpretation of Article 3 of the HRA, which was deemed appropriate in this case, with one dissenting opinion from Lord Millet (para. 102). Based on the given case, Lord Nicholls (para. 4) identified the relevant statutory provisions as paragraphs 2 and 3 of schedule 1 to the Rent Act 1977: 21. The surviving spouse (if any) of the original tenant, if residing in the dwelling-house immediately before the death of the original tenant, shall after the death be the statutory tenant if and so long as he or she occupies the dwelling-house as his or her residence. 22. For the purposes of this paragraph, a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant. 31. Where paragraph 2 above does not apply, but a person who was a member of the original tenant's family was residing with him in the dwelling-house at the time of and for the period of 2 years immediately before his death then, after his death, that person or if there is more than one such person such one of them as may be decided by agreement, or in default of agreement by the county court, shall be entitled to an assured tenancy of the dwelling-house by succession.' Based on the aforementioned provisions, a distinction is made between heterosexual and homosexual couples, such that while a heterosexual partner, upon the death of his spouse becomes a statutory tenant by succession; a homosexual partner is disadvantaged such that the distinction renders them 'in competition' with other members of the deceased family, where even if successful will only be given an 'assured tenancy' and not be considered as 'statutory tenant', as noted by Lord Nicholls (para. 5). This gender-based distinction therefore brings up the issue of discrimination - a violation under Article 14 of the HRA. In order to apply Art 14, however, it is imperative to determine whether the HRA is applicable to the case under the guideline provided in Art 3. In this case, it imperative to first, identify the statue or act that violates the Convention, such that there must be a concrete application of the convention as opposed to a hypothetical situation (R v A [No 2] [2002] 1 AC 45, para 110). Second, one must identify whether there is a violation (Popular Housing Association v Donoghue [2002] QB 48, para. 75). And, third, one must also illustrate that it is compatible with the rights conferred by the Convention, such that it is 'possible' to interpret the act or statue in question in a way that is compatible to the Convention rights by 'reading in' (R v Offren [2001] 2 All ER 154) or 'reading down' (R v Lambert [2002] AC 545) the Convention rights. However, statutory interpretation, in this regard, is not 'possible' if it conflicts with the language of a statutory provision (R v Secretary of State for Home Department [2003] 1 AC 837); by virtue of necessary implication (Re S [2001] 2 FLR 582); with the original statutory scheme (International Transport Roth v Secretary of State for the Home Department [2003] QB 728). Determining that there was a violation of Art 14 of the HRA, therefore requires illustrating that it is 'possible' to interpret paragraphs 2 and 3 under schedule 1 of the Rent Act 1977 in light of the Convention. In this respect, under Art 4 of the HRA, the courts are obliged to state a "declaration of incompatibility" if it is determined that there is no 'possible' manner of compatible interpretation. Lord Nicholls illustrated the difficulty that lies in determining the 'possible' interpretation that is Convention-compliant, stating that: [a] comprehensive answer to [determining that a legislation is Convention-compliant] is proving elusive. The courts, including your Lordships' House, are still cautiously feeling their way forward as experience in the application of section 3 gradually accumulates. (Ghaidan v Godin-Mendoza [2004], para. 27) Moreover, Lord Steyn, in looking into the manner that a legislation is declared incompatible emphasises that based on the statistical report regarding the number of 'possible' interpretations, declarations of incompatibility, and overturned cases under Art 3 of the HRA, "[a] study of the case law reinforces the need to pose the question whether the law has taken a wrong turning (para. 39). Thus, illustrating the need for greater caution in making the decision regarding the case. In judging the disputed case, Lord Millet, in his dissenting opinion, asserts that it is not necessary to "identify ambiguity or absurdity in the statute before giving it an abnormal meaning in order to bring it into conformity with a Convention right", such that "even if, construed in accordance with ordinary principles of construction, section 3 may require it to be given a different meaning" (Ghaidan v Godin-Mendoza [2004], para. 67). However, he asserts that in the disputed case, this is not possible because of the implied meaning given to the phrase "of opposite sex" under the Rent Act (para. 82). Consequently, it renders heterosexual marriages as "conceptually different" from same-sex relationships because "[p]ersons cannot be treated as married to each other unless they are of the opposite sex" (para. 82). This opinion however, did not hold because it renders statutory interpretation useless if it is limited in terms of implied meanings. As Lord Nicholls argues, "it becomes impossible to suppose Parliament intended that the operation of section 3 should depend critically upon the particular form of words adopted in the statutory provision under consideration", such that "the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make [an] interpretation under section 3 impossible" (para. 31-32). Thus, the language of the disputed legislation is only of second importance to the determination of the need for legislation to bear a meaning that departs from the original. In this respect, "bounded only by what is 'possible', a court can modify the meaning, and hence the effect, of primary and secondary legislation" (para. 32). Lord Steyn presents a similar approach in asserting that "there has been too much emphasis on linguistic features" of statutory legislation, such that a broader approach in determining the 'possible' compliant interpretation is needed to avoid undermining the purpose of Art 3 (HRA) (para. 49). Furthermore, Lord Steyn also argues that declaring legislation incompatible under Art 4 of the HRA must only be used as a last resort when it is impossible to provide remedial remedy under Art 3 (para. 50). With respect to Lord Rodger, he provides a reading of Art 3, which aside from the need for a Convention-compliant interpretation of the legislation, identifies the need to "give effect" to the legislation in a Convention-compliant manner, as well (para. 107). In this regard, he emphasizes how Art 3 goes beyond the "interpretation of legislation" into the need to cover the manner that it is 'given effect". Hence, Lord Rodger concludes that being unable to find a "possible" compliant interpretation does not render the need to "give effect" to the legislation futile, such that even if the case of Ghadain v Godin-Mendoza [2004] cannot be interpreted in compliance with the Convention, the need to "give effect" to Art 14 of the HRA still exists. In this regard, while majority of the judges does not agree with Lord Millet's criteria, which renders interpretation impossible by virtue of a legislation's "implied meaning", both the dissenting and majority judges agree that it must not be incompatible with the explicit terms of the legislation, as well as its concept and fundamental features, which identifies the meaning of the legislation. All judges, however, are in agreement that caution, is imperative in doing so, because of the constitutional boundaries constituted in the dispute, such that statutory interpretation must "go with the grain of the legislation" (para. 33). Majority of the judges are therefore in agreement that interpreting the words "as his or her wife or husband" in sec 22. of the Rent Act 1977 as "as if they were his wife or husband" (para. 51) is but an implicit modification in the linguistics of the case, which does not affect the fundamental meaning of the legislation. The legislation therefore is can be interpreted compliant to the Convention, without going beyond the limits identified in the process of construction. Hence, the task requires a compliant interpretation of the original intent of the Parliament. As previously mentioned, statutory interpretation under sec. 3 of the HRA is different from conventional interpretation, such that it is not limited to identifying the original intent of the Parliament, but of the legislators who crafted the HRA, calling for the need, at least in this case, to depart from the intention of the Parliament, which enacted the legislation. Lord Nicholls recognises this approach saying that [i]n the ordinary course the interpretation of legislation involves seeking the intention reasonably attributed to the Parliament using the language in question. Section 3 may require the court to depart from the legislative intention, that is depart from the intention of the Parliament which enacted the legislation. (para. 30) Aside from recognition of the need to stray away from the intent of the Parliament, the judges also recognised the need to interpret with regard to the intent of those who crafted the HRA. This is illustrated by Lord Steyn, asserting that the use of the conventional approach in interpreting section 3 of the HRA is due to a misunderstanding of its intent. He states: two factors are contributing to a misunderstanding of the remedial scheme of the 1998 Act. First, there is the constant refrain that a judicial reading down, or reading in, under section 3 would flout the will of Parliament as expressed in the statute under examination. This question cannot sensibly be considered without giving full weight to the countervailing will of Parliament as expressed in the 1998 Act. (para. 40). Furthermore, Lord Nicholls asserts that it has always been the intent of Parliament to implement and give effect to the Convention rights, such that "[p]arliament has decreed that all legislation, existing and future, shall be interpreted in a particular way which is compatible with the Convention rights 'so far as it is possible to do so'" (para. 26). Thus, based on both the intent of the Parliament to give effect to the Convention, and the intent of the Convention to give effect to the rights of individuals, specifically prevent discrimination based on gender (HRA, 1998, Art 14), it is evident that Godin-Mendoza, as if he were the husband of Wallwyn-James should be given statutory tenancy of the flat; calling for a dismissal of Ghadain's appeal; such that sec. 22 of the Rent Act 1977, is in violation of Art 14 under the HRA, as illustrated in the Conention-compliant interpretation. In this respect, the decision of the House of Lords in Ghaidan v Godin-Mendoza [2004] UKHL 30, cannot be considered as judicial vandalism, but an appropriate statutory interpretation, giving effect to the intent of the HRA and the Parliament in enacting the Convention. This is illustrated in the manner that the only departure from the legislation lies in the linguistic interpretation of the words "as his or her husband or wife", which by virtue of the interpretation given in the decision is neither necessarily implied, in conflict with the language of a statutory provision, nor with the original statutory scheme of the legislation. A Lord Rodger asserts in citing Lord Bingham of Cornhill [2003] 1 AC 837, 883C - D, para. 30, The "judicial vandalism" would lie not in any linguistic changes, whether great or small, which the court might make in interpreting section 29 but in the fact that any reading of section 29 which negatived the explicit power of the Secretary of State to decide on the release date for murderers would be as drastic as changing black into white. (Ghaidan v Godin-Mendoza [2004], para. 111) This decision, is therefore a landmark in extending the scope of sec 22 of the Rent Act 1977 to those engaged in homosexual relations, insofar as they suffice the non-gendered requirements of the provision. With regard to other dangers, however, such as the usurping of legislative powers of the Parliament, one must ensure that such act was not exercised by the judges by ensuring that caution is exhibited in deciding the case. Thus, in citing In re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291, 313, para 39 Lord Rodger illustrates this arguing that the Act not only seeks to preserve parliamentary boundaries, but constitutional boundaries, as well (cited in Ghaidan v Godin-Mendoza [2004] para. 112). Hence, given the landmark character of the case, one can understand the significance of statutory interpretation in updating legal rules with conjunction to social change. This is illustrated in the manner that while same-sex relationships are readily accepted today, such that it is also protected by laws, and not the Rent Act 1977, it would not be the case had the judges in Ghaidan v Godin-Mendoza [2004] chose not to interpret the current law in accordance with HRA. In this respect, while statutory interpretation must not be seen as a legislative body similar to the Parliament, it is applicable, at least in this case, in extending the applicability of current legislation to circumstances, which were not considered at the time that a statute was legislated. It is imperative to note, however, that such interpretation must be limited to instances where the original intent of the concerned legislative body is not compromised to avoid legislation, properly attributed to the Parliament, in the part of judges. In this respect, Lord Asher in Willis v Baddeley (1892) 2 QB 324, 326 notes that: "[t]here is in fact no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances to which it has not previously been authoritatively laid down that such law is applicable." Thus, in order to avoid judicial vandalism and ensure the appropriateness of judicial interpretation, it is imperative to mind the manner that such laws are interpreted, and modified, accordingly. References Duxburry, N. (2004). "English Jurisprudence between Austin and Hart", University of Virginia Law School Public Law and Legal Theory Working Paper Series, no. 9, [available online] http://law.bepress.com/uvalwps/uva publiclaw/art9; accessed 18 November 2005. Ghaidan v Godin-Mendoza [2004] UKHL 30 Human Rights Act 1998 International Transport Roth v Secretary of State for the Home Department [2003] QB 728 Popular Housing Association v Donoghue [2002] QB 48 Rent Act 1977 Re S [2001] 2 FLR 582 R v A [No 2] [2002] 1 AC 45, para 110 R v Lambert [2002] AC 545 R v Offren [2001] 2 All ER 154 R v Secretary of State for Home Department [2003] 1 AC 837 Willis v Baddeley (1892) 2 QB 324, 326 Read More