#19892 - Ghaidan V Godin Mendoza - Constitutional Law

Ghaidan v Godin Mendoza

The Court of Appeal

Buxton LJ:

Gave three reasons why deference to the will of Parliament won’t help in this case:

1. (some technical stuff)

2. Lord Hope in ex p Kebilene said it’s easier for discretionary judgement to be recognised where the issues involve questions of social/economic policy, much less so where the rights are of high constitutional importance or are the kind where courts are well placed to assess the need for protection.

Housing policy involves complex socioeconomic issues. But discrimination is of ‘high constitutional importance’ and is an issue the courts shouldn’t shrink from. Therefore, deference has only a minor role to play.

3. Courts aren’t simply bound by whatever Parliament has decided. Need to look at steps taken to implement the policy

The way the CA structured this was interesting. They firstly determined the legislation broke convention rights. S.3 is put under the remedy section, which highlights the difference between this and ordinary statutory interpretation.

The House of Lords

Lord Nicholls:

Sets out the intention of Parliament is for the courts to read legislation in line with Convention rights as far as it is possible to do so.

However, he thinks s.3 is open to more than one interpretation. He argues s.3(1) indicates Parliament did not envisage all legislation would be capable of being made convention-compliant through s.3. When is it ‘possible’? one interpretation is s.3 is confined to requiring courts to resolve ambiguities. Where the words under consideration fairly admit of more than one meaning, the convention-compliant one is to apply. This interpretation would give s.3 a narrow scope. Nicholls thinks this is not the prevailing view.

He thinks it’s now accepted the application of s.3 does not require ambiguities. “Even if, construed according to the ordinary principles of interpretation, the meaning of the legislation admits of no doubt, section 3 may nonetheless require the legislation to be given a different meaning”. He cites R v A (No.2) as an example. “Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear”. “Section 3 may require the court to depart from this legislative intention, that is, depart from the intention of the Parliament which enacted the legislation”. But, he later says Parliament cannot have intended the courts should use s.3 to adopt a meaning inconsistent with the fundamental feature of the legislation. . Lord Rodger: words implied must ‘go with the grain of the legislation’.

Bellinger v Bellinger was the case where courts refused to issue remedies under HRA because it was a policy decision which would have had wide ramifications, for which the courts are ill-equipped.

Lord Steyn:

“S.3(1) imposes a stronger and more radical obligation than to adopt a purposive interpretation” (purposive is the regular way of interpreting statutes).

He says, and it’s useful to have an authority for this, that if Parliament disagrees with an interpretation by the courts under s.3(1), it is free to override it by amending the legislation and expressly reinstating the incompatibility. (Yap uses this argument).

There is little point trying to formulate precise rules where s.3 will apply because such a case ought to be easily identifiable. ‘interpretation under s.3(1) is the prime remedial remedy and that resort to s.4 must always be an exceptional course’.

Lord Millett

Dissents on the use of s.3. Points out that the courts aren’t actually statutorily required to use s.4 if they can’t use s.4. Points...