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Ghaidan v Godin-Mendoza

[2004] 3 W.L.R. 113

Case summary last updated at 07/02/2020 13:59 by the Oxbridge Notes in-house law team.

Judgement for the case Ghaidan v Godin-Mendoza

A was in a homosexual relationship with B who had a protected tenancy. B died and under the Rent Acts a partner acting as a husband or spouse who was living with him was entitled to an assured tenancy. HL ruled that in order to make the act compatible with convention rights, they would make a s.3 interpretation so as to say that homosexual couples can also count as “spouses”. 
Lord Nicholls: He said that to exclude homosexuals would be to make the act incompatible with article 14 (non-discrimination). He says there is difficulty in deciding what s.3 HRA means by “as far as possible”. He accepts Steyn’s view in R v A (no.2) and says S.3 is unusually far-reaching: Parliament, in passing the HRA 1998, is consenting to the courts modifying an act’s meaning as far as possible so as to make it compatible with convention rights, even if this goes against the clearly intent of parliament. 
Lord Steyn says that the aim of HRA 1998 was to “bring rights home”, which only s.3 interpretation can do: the declaration cannot. He reaffirms the need for s.4 to be treated as a last resort (it is NOT remedial). Though it can lead to a change in the law which has the benefits of keeping clarity in the law, avoiding linguistic strain and allows an amendment to happen quickly by remedial order under s.10. 
Lord Millett (dissenting) denied that s.3 could be used. The statute could not feasibly be given the meaning that the majority considered it to have. He says that S.3 is NOT really conferring a “quasi-legislative” function rather than purely an interpretative one. 

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