A recent UK court case indicates that unelected judges are making laws.
Recent judicial activism in the case of Mendoza v Ghaidan (1) suggests that we are moving towards a ‘judge-ocracy’, where unelected judges make laws for us.
Antonio Mendoza’s solicitor, Russell Conway, said: ‘This is a sensational judgment because the Court of Appeal has put itself above parliament and rewritten an Act. This is exactly what the Human Rights Act was designed to do.’ (2) But when judges put themselves above parliament, what are the consequences for democracy?
Mendoza is the surviving partner of another man. The couple had been together since 1972. In 1983, Mendoza’s partner rented a flat and they moved in together. When his partner died, Mendoza started a court action to find out if he could succeed to the tenancy. The Rent Act (1977), which specifies what should happen to other people living in the property when a statutory tenant dies, did not include same-sex couples in the category of spouses who could succeed to the tenancy. So the Court rewrote the law.
The legal background is rather complicated. In 1988, parliament phased out Rent Act tenancies, because the Rent Act (1977) made it too difficult for landlords to get their property back (3). A new scheme was applied to tenancies made after 15 January 1989.
For tenants with tenancy agreements pre-dating 15 January 1989 – like Mendoza’s partner – there was a halfway house arrangement for succession to tenancies. Spouses, or ‘common law spouses’, ie, people not legally married but living together as husband and wife, could succeed to an old-fashioned Rent Act tenancy under paragraph 2 of Schedule 1. Other members of the tenant’s family, if they had been living with the tenant for the past two years, could only succeed to a tenancy governed by the new 1989 regime (4).
Mendoza complained that paragraph 2 of Schedule 1 to the Rent Act did not expressly include same-sex relationships (5). He argued that the Rent Act 1977 was discriminatory and violated his human rights, because it didn’t recognise him as if he were a spouse. He invoked Article 8 of the European Convention on Human Rights, the right to respect for one’s home; and Article 14, which prohibits discrimination.
In conventional legal terms, this argument was doomed to fail. The contested provisions in paragraph 2 of Schedule 1 to the Rent Act say:
‘ 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.
‘ 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.’ (Italics added.)
Mendoza asked the court to declare that the words ‘as his or her wife or husband’ in provision  should read: ‘as if they [sic] were his or her wife or husband.’ Marriage remains a heterosexual institution in the UK. Mendoza argued that, though it was legally impossible for him to have married his partner, he should be treated as if he were married.
The judge who first heard Mendoza’s case refused to play the ‘as if’ game. He was influenced by a 1999 ruling of the House of Lords, the UK’s most senior court, in the almost identical case of Fitzpatrick v Sterling Housing Association (6). Then, the Lords decided that paragraph 2 couldn’t be interpreted to include same-sex couples. Lord Nicholls said: ‘Marriage, spouse, husband and wife are all terms connoting a relationship between a man and a woman, that is, between persons of the opposite sex. A husband is a man and a wife is a woman. These are, in this context, gender-specific words’ (7).
Lord Clyde said: ‘The language here plainly indicates a biological distinction between the sex of the original tenant and that of the successor. The careful use of the words “his” and “her” and the phrase “wife or husband” point to a heterosexual relationship. I see no difference between the language used and the phrase “his wife or her husband” and I cannot read the language as if it had said “his or her partner”.’ (8) Lord Hutton pointed out that: ‘because the essence of marriage is a relationship between a man and a woman there is no de jure family relationship to which a homosexual relationship is equivalent.’ (9)
The House of Lords was not being reactionary; it was stressing that parliament, and not the courts, should strike the balance in this area. Lord Hobhouse observed: ‘The Act is social legislation. There are competing social policies and choices that are relevant to the decision what statutory rights of succession should be granted. The situation is complex. There are conflicting interests; indeed the subject matter of these provisions is private law property rights.’ (10) Lord Slynn cautioned: ‘When considering social issues in particular judges must not substitute their own views to fill gaps.’ (11)
Fitzpatrick was not all bad news for gay couples, because a majority of Law Lords decided that a surviving partner of a same-sex couple did count as a member of the family, and so could succeed to a tenancy that way.
But Mendoza appealed against the first judgement, and invited the Court of Appeal to exercise its powers of interpretation under section 3 of the Human Rights Act 1998, to give him a spousal status. Section 3 says: ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.’
When the Human Rights Act was introduced, Labour promised that it would leave parliamentary sovereignty unchanged (12). Since then, in a number of cases under section 3 of the Human Rights Act, the House of Lords has been at pains to emphasise that we live in a parliamentary democracy, and that it is not for judges to amend legislation (13).
The Court of Appeal does not seem to have followed the Lords’ directions in this case, however. Instead, it seems to have collapsed concepts of marriage, common law marriage, same-sex partnerships and ‘family’ (eliding ‘nuclear’ and ‘non-nuclear’ definitions of ‘family’) into a mélange.
Relying on the Human Rights Act, the Court of Appeal ordered that paragraph 2 of Schedule 1 to the Rent Act should read: ‘For the purposes of this paragraph, a person who was living with the original tenant as if they [sic] were his or her wife or husband shall be treated as the spouse of the original tenant.’ (14) This is not just ungrammatical: it glosses over the fact that parliament had chosen to use explicitly gendered language. The gender-neutral term ‘they’ cuts across and contradicts parliament’s use of ‘his or her’ and ‘wife or husband’.
For judges to amend an Act of Parliament in this way is subversive of parliament’s function. The Court of Appeal’s ruling in Mendoza also effectively reverses the Lords’ ruling in Fitzpatrick – even though the Court of Appeal is subordinate in the judicial hierarchy. Nevertheless, the Court of Appeal’s ruling was hailed in the media both as a landmark decision under the Human Rights Act 1998, and as a major victory for gay rights (15). The wave of public approval is likely to give the ruling a certain inviolability.
Yet the Court of Appeal’s reasoning is convoluted and ill-explained. It never spells out the detailed consequences of parliament’s arrangements under the Rent Act for spouses, compared to family members – nor does it analyse them. The reader is left in the dark as to why Mendoza felt so threatened that he had to start litigation – passing references in the judgment suggest that any risk of eviction was theoretical, rather than real (16). Instead, the Court seems to have been interested in a more abstract debate about ‘recognition’ of gay couples as spouses, rather than as family.
An unusual feature in Mendoza was the intervention of Stonewall, the gay rights pressure group that campaigns under the slogan Why the f*** isn’t our relationship recognised by the law? (17). It is strange that the court allowed this; ordinarily, when private parties litigate in court, an outside pressure group can’t intrude. If the judges wanted to be addressed on broader policy issues, they could have requested assistance from the Attorney General, who is usually asked to comment when Acts of parliament are under challenge.
Without reading a full transcript, it is impossible to know exactly how the case unfolded. But some arguments seem awry. In order to get his case on discrimination up and running, Mendoza had to show that one of his other Convention rights was involved. This is because Article 14 of the Convention does not give people a ‘free standing’ right to equality: it simply provides that people should not be discriminated against in their enjoyment of their other Convention rights. He therefore had to show that his right to respect for his home under Article 8 was sufficiently implicated.
Mendoza’s argument seems to be that, although he had got one kind of statutory tenancy (by being recognised as family), he should have another one (by being recognised as a spouse). Therefore he could claim discrimination. But given that Mendoza’s home was not under threat, the logic of this argument is not easy to follow. Nevertheless, the Court agreed with Mendoza’s argument that Article 14 was (in the legal jargon) engaged (18).
The next question was whether the statutory scheme discriminated against Mendoza, compared with a heterosexual ‘partnership’. If the court had adopted the House of Lords’ analysis in Fitzpatrick, the comparison should have been with a married couple or an unmarried heterosexual couple living together as husband and wife – and would have found that a gay couple is not similarly situated to a heterosexual couple. However, the landlord conceded that the statutory scheme discriminated against same-sex couples (19).
So the Court of Appeal required him to justify this discrimination, even though he was not personally responsible for the state’s legislative policy. Understandably, the landlord sought to raise legitimate policy concerns, such as the interests of landlords, flexibility in the housing market, and protection of the family (20).
But here the Court of Appeal raised the stakes. It said that issues of discrimination had ‘high constitutional importance’, and that when concerned with issues of high constitutional importance judges could interfere much more readily with the law, than in cases concerning social or economic policy, where greater judicial deference to parliament is expected (21).
But the Rent Act is unquestionably a piece of social legislation. Why a piece of social legislation should suddenly become the exclusive territory of judges, to a point where they can rewrite passages of which they don’t approve, is nowhere spelt out.
In Mendoza, the Court complained that the landlord had not provided any evidence to support his policy concerns. Yet it invoked ‘common sense’, and even ‘instinct’ in favour of its arguments – and made pronouncements like: ‘it is quite unclear how heterosexual family life (which includes unmarried partnerships) is promoted by handicapping persons who are constitutionally unable, or strongly unwilling, to enter into family relationships so defined’ (22). Compared with the kinds of detailed socio-economic analysis, consultation and debate which politicians and policymakers draw on before embarking on social legislation, the Court of Appeal’s justification for rewriting part of an Act of Parliament looks decidedly weak.
The Court of Appeal’s ruling paves the way for other demands for recognition by minority groups to be pursued in the courts. Curiously, the ruling came out only a month before the government proposed a regime of ‘civil partnership’ for gay (but not heterosexual) couples (23). The government refuses to put same-sex partnerships in the same bracket as marriage. Yet this appellate court has ruled that a claimant demanding a status equivalent to marriage, in the context of a statutory scheme, should get it.
Mendoza is a precedent for judges to rewrite all manner of legislation to do with fatal accident claims, tax, inheritance, pensions and possibly even the marriage laws themselves, to enable a group regarding itself as unfairly excluded to be recognised as if the relevant law applied to it. Unmarried heterosexual couples might also ask the courts to abolish existing legal distinctions between them and married couples.
But we have to ask, if judges can use the Human Rights Act to go to such lengths, what role is there left for parliament?
Barbara Hewson is a barrister at Hardwicke Civil
Antenatal coercion, by Barbara Hewson
Storm in a test-tube, by Barbara Hewson
(1) Antonio Mendoza v Ahmad Raja Ghaidan  EWCA Civ 1533 (Lord Justices Kennedy, Buxton and Keene, 5 November 2002)
(2) Independent, 6 November 2002
(3) Housing Act 1988
(4) Paragraph 3 of Schedule 1 to the Rent Act 1977 (as amended in 1988): ‘Where…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 two years immediately before his death then, after his death, that person…shall be entitled to an assured tenancy of the dwelling-house by succession’
(5) If Mendoza’s partner had rented their flat after 15 January 1989, the only category of people allowed to succeed to the tenancy would be either a spouse, or someone living with him as a wife or husband. So the case had implications for same-sex couples who had rented after 15 January 1989. See Megarry’s Real Property Manual, 8th edition, p602-3. The Housing Act 1996 changed the law again, to favour landlords even more
(6) Fitzpatrick v Sterling Housing Association  1 AC 27
(7) Fitzpatrick v Sterling Housing Association  1 AC 43
(8) Fitzpatrick v Sterling Housing Association  1 AC 47
(9) Fitzpatrick v Sterling Housing Association  1 AC 62
(10) Fitzpatrick v Sterling Housing Association  1 AC 67
(11) Fitzpatrick v Sterling Housing Association  1 AC 33
(12) White Paper, Rights Brought Home The Human Rights Bill (Cm 3782) October 1997, paragraph 2.13
(13) In re S; In re W  2 AC 29. And see Lord Hope in R v
Lambert  3 WLR 206 at 234; Lord Woolf CJ in Poplar Housing v Donoghue  3 WLR 183 at paragraph 77; R v Daniel  EWCA Crim 959, paragraph 27
(14) Antonio Mendoza v Ahmad Raja Ghaidan, paragraph 35
(15) ‘Tenancy ruling endorses gay rights’, BBC News, 5 November 2002; ‘Tenancy ruling marks gay rights watershed’, Guardian, 6 November 2002; ‘Landmark as gay couples win equal rights on tenancy’, Independent; ‘Gays win tenancy rights under human rights law’, Daily Telegraph
(16) Antonio Mendoza v Ahmad Raja Ghaidan, paragraphs 5, 10, 41
(17) Equal as Partners campaign
(18) Antonio Mendoza v Ahmad Raja Ghaidan, paragraphs 9-13
(19) Antonio Mendoza v Ahmad Raja Ghaidan, paragraphs 7-8
(20) Antonio Mendoza v Ahmad Raja Ghaidan, paragraph 16
(21) Antonio Mendoza v Ahmad Raja Ghaidan, paragraphs 19, 44
(22) Antonio Mendoza v Ahmad Raja Ghaidan, paragraphs 20-1
(23) Gay couples ‘to get equal rights’, BBC News, 6 December 2002
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