The Opinion of Discrimination - Case Study Example

1 Lord Nicholls of Birkenhead’s opinion is that of discrimination. The lord also dismissed the appeal, saying the law should also be interpreted not only with the words used to write it but also the substance behind the statute. Lord Steyn also agreed to the dismissal of the case. He limits his comments on the question of whether the section in the Human Rights Act 1998 can be read and applied to make paragraph 2(2) of Schedule of Rent Act 1977 without conflicting with the European Convention on Human Rights. Lord Millett disagreed with Lord Nicholls’ opinion. He explains that the words in Sections 3 of the Human Rights Act 1998 are unambiguous. Also, the duty to interpret the law should only be when the ordinary meaning of the said law is incompatible with the Convention. Lord Rodger of Earlsferry agreed to dismiss the appeal. His comments are limited to his additional observations of Section 3 of the Human Rights Act 1998. Baroness Hale of Richmond also decided to dismiss the appeal on the basis of discrimination. She explains that there should be no discrimination especially in these modern times. 2.) The appellant, Mr. Ahmed Ghaidan, is the landlord of the basement flat where the respondent and original tenant, deceased, reside. He wants to appeal the decision of the Court of Appeals and claim possession of said flat from respondent. The court of first instance had decided in his favor, claiming however that the respondent was recognized as entitled to assured tenancy. On appeal, the court decided that respondent was entitled to statutory tenancy under paragraph 2. The respondent, Mr. Juan Godin-Mendoza claims that he should be entitled to statutory tenancy as per Paragraph 2 and 3 of Schedule 1 to the Rent Act 1977. He maintains that interpretation of said paragraphs should be the same for both homosexual & heterosexual couples. He also says that the interpretation of the law violates his Convention rights under Article 14 read in conjunction with Article 8. 3.) Judge Cowell decided that respondent can only be considered a member of the original tenant’s family and as such is entitled to assured tenancy by succession. The respondent, though, wasn’t to be recognized as a husband or wife as per paragraph 2(2) and, in effect, as the surviving spouse and statutory tenant under paragraph 2(1). 4.) Unlike in Fitzpatrick v Sterling Housing Association Ltd, for Ghaidan v. Godin-Mendoza [2004] 2 A.C. 557 the House of Lords decided that interpretation of paragraph 2 should be extended to the surviving spouse in a homosexual relationship. “Cohabitation”, which is the important feature of said paragraph, should not be limited to apply only to heterosexual couples to avoid discrimination. It was also decided that a substantive effect should be the objective in the interpretation of paragraph 2. 5.) i) I consider this immaterial. Lord Nicholls of Birkenhead (2004) said there is no reason to believe that because a homosexual couple cannot have a family in the traditional sense it should have bearing on succession rights. ii) Again I find this immaterial. As per Paragraph 2 (2) of Schedule 1 to the Rent Act 1977 it was enough that a person had been living with the original tenant to be considered the latter’s spouse. iii) Again, this is immaterial. Paragraph 2 (1) of the Rent Act 1977 provides that as long as the original tenant’s house is the residence of the surviving spouse, the latter shall be the statutory tenant. In Paragraph 3(1) of the same Act, only a 2-year period of dwelling in the original tenant’s house is required for the surviving spouse to be considered for assured tenancy. iv) This is material because it was the essence of the ruling in Fitzpatrick v Sterling Housing Association Ltd. The decision in this case was the basis for the appellant’s claim. This interpretation of the law paved the way for a closer study of the statute so as to avoid discrimination and to prevent a limited understanding of words in the statute. 6.) Section 3 of the Human Rights Act 1998 (2004) states: “So far as it is possible to do so, primary legislation must be read and given effect in a way which is compatible with the Convention rights.” Lord Nicholls stated that Section 3 can be interpreted in more than one way because of the word “possible”. He further explained that the purpose of Section 3 was not only to help with unambiguous legislation but also to interpret it using the fundamental basis of said law. 7.) Lord Nicholls says the Courts are legally allowed to modify the meaning of the unambiguous legislation. But, it can only do so in accordance with the core aspect of the law. It cannot interpret in a way that is conflicting to this feature. However, Lord Millett disagrees. Section 3 is mandatory, he says, and should be affected only when the legislation is not harmonious with Convention rights. He believes Section 3 does not allow the court to change the words of the offending law. 8.) It is Baroness Hale’s that the roles of a husband and a wife are inter-changeable (Harris-Short 2007, p. 319). As such, it is easy to consider a couple in a same sex relationship “as husband and wife” or “marriage-like”. Also, it is her opinion that because Article 14 protects from sexual orientation, the legal interpretation gives preference to the surviving spouse in a heterosexual relationship should be closely analyzed. She stresses that there is no reason why, in the 21st century, interpretation of a law which is beneficial to couples in a heterosexual relationship cannot be bestowed on a same-sex couple. 9.) Lord Millett disagrees that Section 3 can be interpreted to give meaning to paragraph 2(2). He believes that the duty of the Courts set forth by Section 3 is obligatory. He explains that paragraph 2(2) of Schedule 1 to the Rent Act 1977 explicitly reads “a person of the opposite sex”. If the law is read in a way that it applies to persons of the same or opposite sex then it obviously goes against the basic idea set by the statute. He also interpreted the word “spouse” in paragraph 2(1) to mean the other half of a married couple. He stresses that the paragraph is gender specific. Also, he reasons that legislative history shows statutory tenancy rights are accorded to the widow because of her status. Furthermore, Millett suggests that interpretation of the terms in the statute should be congruent to the meaning the words and the ideas had when the law was made. 10. I believe this decision should not be declared incompatible. Section 4 provides incompatibility should be stressed by the courts if they have determined that a law is in violation of the Convention rights. We have seen from this decision, majority of the writers agree the provision cited by the appellant does violate the respondent’s Convention rights. They also mentioned that a resort to Section 4 must be made when, after application of Section 3, the legislation is still deemed to be not in harmony with Convention rights. As Lord Nicholls have explained, the Courts presupposed there would be cases where Section 3 may not be applicable. Thus, they created Section 4. References Harris-Short, S 2007, ‘Family Law and the Human Rights Act 1998’ in H Fenwick, G Philippson & R Masterman (eds.), Judicial Reasoning under the UK Human Rights Act, Cambridge University Press, UK Human Rights Act 1998 Judgments – Ghaidan (Appellant) v Godin-Mendoza (FC) (Respondent) 2004, court decision, United Kingdom Parliament, viewed April 19, 2009, http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040621/gha-1.htm Read More