In the United Kingdom, where there is no written Constitution, the section 3 of the Human Rights Act 1998 has given the courts the prerogative to read and give effect to statutes "in a way which is compatible with the Convention rights ". If it cannot be done so, the section 4(2) provides that "If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility". In consequence of the wide power that these sections give to courts and the fact that it is very recent ("this is a difficult exercise for it is one which the courts have no hitherto been accustomed to perform, and where they must accordingly establish their own grounds for the first time ".), their enforcement have been controversial. As a matter of fact, the courts still have difficulties to run their young authority and to set a stable precedent.
However, in a recent case, the House of Lords has decided to use the section 3 of the Human Rights Act in a wide way, in accordance with the Court of Appeal's decision. In Ghaidan v Godin-Mendoza , the senior judiciary has chosen to read and give effect to Paragraph 2 of Schedule 1 to the Rent Act 1977 which allows the spouse of a protected tenant to succeed to the tenancy on the tenant's death as including the survivor of a same sex partnership as a spouse. This decision has not been unanimous, with one Lord dissenting. It reflects the fact that this judgement is very controversial in the extent it uses Section 3 of the Human Rights Act 1998.
[...] The final argument for this part would be the duty of the judges to give a fair judgment in a case: the considerations of continuity, stability and authority of law are not the only relevant. By section 3 HRA, the courts are given the opportunity to compensate for the ‘gap' that law may leave in some statutes: this let the law to be more flexible and substantially increases the judicial power to protect Human Rights. The judicial interpretation: a flexible adaptation of law to social change We have seen through this essay that in Ghaidan v Mendoza, the House of Lord had used its duty of interpretation under the section 3 HRA to read the para 2 sch 2 of the Rent act in a way which made this text compatible to the convention Rights. [...]
[...] Fitzpatrick v Sterling Housing Association Ltd (1999) 4 All ER 705, (2001) 1 AC 27, (1999) 3 WLR 1113, HL. Mead, D. ‘Swallowing the camel, straining at the gnat: the implication of Mendoza v. Ghaidan'. Human Right Law Review 501-514. G v M op cit paragraph 1 G v M op cit paragraph 55 Montesquieu, De l'esprit des lois, Livre XI. ‘Power has to stop power' : Montesquieu, De l'esprit des lois, Livre XI. [...]
[...] Sterling Housing Association[6], the House of Lords decided unanimously that unmarried same-sex couples could not live as ‘wife or husband'. The House held, however, that same-sex partners could only succeed to an assured tenancy as a ‘family member', which is less advantageous[7]. In Ghaidan v. Mendoza, the situation is the same: the tenant died, leaving his same-sex partner to fight for keeping the tenancy of the flat, because the Rent Act 1977 amended by the Housing Act 1988 only mentions the ‘surviving spouse' or a person who have been living with the deceased his wife or husband'. [...]
[...] Bibliography Books and articles Hitching (2003) ‘Mendoza v Ghaidan' Journal of Social Welfare and Family Law, 25(3) Available at: http://taylorandfrancis.metapress.com/mediaf83pvhtgyp09737jte27/contrib utions/f/a/g/l/fagl049v0104cvf7.pdf accessed 22nd of November 2005. Kavanagh, The elusive divide between interpretation and legislation under the Human Rights Act 1998, Oxford Journal of legal studies, volume 24, No 2 (2004), pp 259-285. Available at: http://ojls.oxfordjournal.org/cgi/reprint/24/2/259, accessed 22nd of November 2005. Mead, D. ‘Swallowing the camel, straining at the gnat: the implication of Mendoza v. Ghaidan'. Human Right Law Review 501-514. [...]
[...] In contradiction with its 1999 decision, the House of Lords decided in Ghaidan v Mendoza to provide to the surviving partner the right to be considered as a surviving spouse, interpreting the Rent Act 1977 using the section 3 of the HRA 1998. Indeed, the House considered that the paragraph 2 of schedule 1 to the Rent Act 1977 interpreted in a narrow way was discriminating same sex partners under the 8th and 14th articles of the HRA. The senior judiciary came to the decision that even if the considered part of the Rent Act is not ambiguous, social policy underlying the extension of security of tenure ( ) to the survivor of couples living together as husband and wife was equally applicable to the survivor of homosexual couples living together in a close and stable relationship”[8]. [...]
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