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( 155 .)


ing case has once again cast doubt upon the matter, and has reopened the
question of how far section 3 of the Human Rights Act may be used by the
courts to force a rethinking of traditional understandings of the sovereignty of
(See further Bennion, ˜What is “possible” under section 3(1) of the Human
Rights Act 1998?™ [2000] PL 77; Marshall, ˜The lynchpin of parliamentary inten-
tion: lost, stolen, or strained?™ [2003] PL 236; Kavanagh, ˜The elusive divide
between interpretation and legislation under the Human Rights Act 1998™
(2004) 24 OJLS 259 and Kavanagh, ˜Statutory interpretation and human rights
after Anderson: a more contextual approach™ [2004] PL 537.)

Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557
This case concerned a claim of discrimination, contrary to Articles 8 and 14
of the European Convention on Human Rights, in the application of the Rent
Act. The background was as follows: on the death of a protected tenant of
a dwelling-house his or her surviving spouse, if then living in the house,
becomes a statutory tenant by succession. Marriage is not essential for this
purpose. A person who was living with the original tenant ˜as his or her wife or
husband™ is treated as the spouse of the original tenant (Rent Act 1977, Schedule
1, para 2(2), as amended by the Housing Act 1988). In Fitzpatrick v Sterling
Housing Association [2001] 1 AC 27 the House of Lords decided that this pro-
vision did not include persons in a same-sex relationship. The question in
Ghaidan v Godin-Mendoza was whether this reading of the provision survived
the coming into force of the Human Rights Act 1998. The House of Lords ruled
that it did not. The majority reinterpreted the provision under section 3 of the
Human Rights Act. Lord Millett, on the other hand, ruled that a declaration of
65 The ideas of the constitution

incompatibility under section 4 should have been granted. It is instructive
to compare the two approaches. Lord Nicholls was one of the judges in the

Lord Nicholls: . . . One tenable interpretation of the word ˜possible™ would be that section 3
is confined to requiring courts to resolve ambiguities . . . This interpretation of section 3 would
give the section a comparatively narrow scope. This is not the view which has prevailed . . .
[T]he interpretative obligation decreed by section 3 is of an unusual and far-reaching
character. Section 3 may require a court to depart from the unambiguous meaning the
legislation would otherwise bear. In the ordinary course the interpretation of legislation
involves seeking the intention reasonably to be attributed to Parliament in using the
language in question. Section 3 may require the court to depart from this legislative inten-
tion, that is, depart from the intention of the Parliament which enacted the legislation. The
question of difficulty is how far, and in what circumstances, section 3 requires a court to
depart from the intention of the enacting Parliament. The answer to this question depends
upon the intention reasonably to be attributed to Parliament in enacting section 3 . . .
[T]he intention of Parliament in enacting section 3 was that, to an extent bounded only
by what is ˜possible™, a court can modify the meaning, and hence the effect, of primary and
secondary legislation. Parliament, however, cannot have intended that in the discharge of
this extended interpretative function the courts should adopt a meaning inconsistent with
a fundamental feature of the legislation. That would be to cross the constitutional boundary
section 3 seeks to demarcate and preserve. Parliament has retained the right to enact
legislation in terms which are not Convention-compliant. The meaning imported by applica-
tion of section 3 must be compatible with the underlying thrust of the legislation being
construed. Words implied must . . . ˜go with the grain of the legislation™. Nor can Parliament
have intended that section 3 should require courts to make decisions for which they are not
equipped. There may be several ways of making a provision Convention-compliant, and the
choice may involve issues calling for legislative deliberation.
[His Lordship referred to Bellinger v Bellinger, cited above, and continued:] No difficulty
arises in the present case. Paragraph 2 of Schedule 1 to the Rent Act 1977 is unambiguous.
But the social policy underlying the . . . extension of security and tenure under paragraph 2
to the survivor of couples living together as husband and wife is equally applicable to the
survivor of homosexual couples living together in a close and stable relationship. In this
circumstance I see no reason to doubt the application of section 3 to paragraph 2 has the
effect that paragraph 2 should be read and given effect to as though the survivor of such
a homosexual couple were the surviving spouse of the original tenant.

Lord Millett: . . . I agree with all my noble and learned friends . . . that [the] discriminatory
treatment of homosexual couples is incompatible with their Convention rights and cannot be
justified by any legitimate aim . . .
The question [of whether section 3 or section 4 should be used] is of great constitutional
importance, for it goes to the relationship between the legislature and the judiciary, and
hence ultimately to the supremacy of Parliament. Sections 3 and 4 of the Human Rights Act
were carefully crafted to preserve the existing constitutional doctrine, and any application
66 British Government and the Constitution

of the ambit of section 3 beyond its proper scope subverts it. This is not to say that the
doctrine of parliamentary supremacy is sacrosanct, but only that any change in a funda-
mental constitutional principle should be the consequence of deliberate legislative action
and not judicial activism, however well meaning.
[His Lordship proceeded to outline two sorts of cases in which use of section 3 would be
inappropriate:] In some cases (Re S and Anderson [cited above] are examples) it would have
been necessary to repeal the statutory scheme and substitute another. This is obviously
impossible without legislation, and cannot be achieved by resort to section 3. In other cases
(Bellinger is an example) questions of social policy have arisen which ought properly to be
left to Parliament and not decided by the judges.
[S]ection 3 requires the court to read legislation in a way which is compatible with the
Convention only ˜so far as it is possible to do so™. It must, therefore, be possible, by a process
of interpretation alone, to read the offending statute in a way which is compatible with
the Convention. This does not mean that it is necessary to identify an ambiguity or absur-
dity in the statute . . . before giving it an abnormal meaning in order to bring it into
conformity . . . [The court] can read in and read down; it can supply missing words, so long
as they are consistent with the fundamental features of the legislative scheme; it can do
considerable violence to the language and stretch it almost (but not quite) to breaking point.
The court must ˜strive to find a possible interpretation compatible with Convention rights™
(citing Lord Steyn in R v A). But it is not entitled to give it an impossible one, however much
it would wish to do so. In my view section 3 does not entitle the court to supply missing
words which are inconsistent with a fundamental feature of the legislative scheme; nor to
repeal, delete, or contradict the language of the offending statute.

(iii) Challenge of common law radicalism
Notwithstanding the undoubted importance of the European Communities
Act 1972 and the Human Rights Act 1998, it may be that the most potent
challenge to the continuing status of parliamentary sovereignty as the ˜keystone™
of the British constitution comes not from any legislation that Parliament
has passed but from the common law. The past ¬fteen years or so have seen
a remarkable renaissance in what might be called common law radicalism.
There have been common law radicals in previous centuries. Sir Edward Coke
(1552“1634), the most famous and the most innovative common lawyer of the
early seventeenth century, Chief Justice under James I turned parliamentarian
and leading author of the Petition of Right (1628) was one such, who more than
left his mark on constitutional law. Common law radicals believe that the entire
constitution, including the doctrine of the sovereignty of Parliament, is based
on the common law. The recent renaissance of common law radicalism has seen
several judges and academic commentators arguing, for example, that the
common law includes a ˜higher-order law™, to which even legislation is subject
(Sir John Laws, ˜Law and democracy™ [1995] PL 72).
So far has the argument developed that some discern an ˜emerging con-
stitutional paradigm, no longer of Dicey™s supreme parliament to whose will
the rule of law must ¬nally bend, but of a bi-polar sovereignty of the Crown in
67 The ideas of the constitution

Parliament and the Crown in its courts™ (Sir Stephen Sedley [1995] PL 386, 389).
In a series of remarkable dicta in the 1980s a New Zealand judge, Cooke J (who
later became Lord Cooke of Thorndon), questioned whether the Parliament of
New Zealand (acknowledged as possessing a legal sovereignty like that of the
United Kingdom Parliament) could lawfully override certain fundamental,
common law rights. For instance, in Taylor v New Zealand Poultry Board [1984]
1 NZLR 394, 398 he said: ˜I do not think that literal compulsion [to answer
questions from an o¬cial], by torture for instance, would be within the lawful
powers of Parliament. Some common law rights presumably lie so deep that
even Parliament could not override them.™ Along similar lines, albeit extra-
judicially, Lord Woolf MR has said (in ˜Droit public “ English style™ [1995]
PL 57, 69) that if Parliament ˜did the unthinkable™ in depriving the High Court
of its role in reviewing the legality of executive action:

then I would say that the courts would also be required to act in a manner which would be
without precedent. Some judges might choose to do so by saying that it was an unrebut-
table presumption that Parliament could never intend such a result. I myself would consider
there were advantages in making it clear that ultimately there are even limits on the
supremacy of Parliament which it is the courts™ inalienable responsibility to identify and
uphold. They are limits of the most modest dimensions which I believe any democrat would
accept. They are no more than are necessary to enable the rule of law to be preserved.

In 2003“04 the Government did indeed propose the ˜unthinkable™. Its Asylum
and Immigration (Treatment of Claimants etc) Bill included a clause that would
have ousted judicial review in almost all asylum cases. This was greeted with
uproar. Lord Woolf CJ stated in a widely publicised lecture that the provision
˜was fundamentally in con¬‚ict with the rule of law™ and that ˜if this clause were
to become law, it would be so inconsistent with the spirit of mutual respect
between the di¬erent arms of government that it could be the catalyst for a cam-
paign for a written constitution™, a written constitution, his Lordship implied,
that would not include the doctrine of parliamentary sovereignty among its
provisions. (See Lord Woolf, ˜The rule of law and a change in the constitution™
(2004) 63 CLJ 317, 328“9.) Two former Lord Chancellors, including Lord Irvine
of Lairg (who had, until 2003, been a member of the government that was now
proposing the measure) made it clear that they would denounce it in the House
of Lords. In the event, the Government dropped the clause before the measure
could be debated in the Lords. The Act as passed does not include it, although
it does contain a range of measures designed to make it more di¬cult to gain
the assistance of the courts in seeking asylum in the United Kingdom (for a
valuable and thorough commentary, see Rawlings, ˜Review, revenge and retreat™
(2005) 68 MLR 378). In the light of this controversy, Lord Steyn has conjectured
that, while the sovereignty of Parliament is ˜the ¬rst principle of our constitu-
tion™, if a statute should unequivocally oust the reviewing jurisdiction of the
courts, ˜the House of Lords may have to consider whether judicial review is a
constitutional fundamental which even a sovereign Parliament cannot abolish™
68 British Government and the Constitution

(˜Comments™ [2004] Judicial Review 107). As Laws LJ stated in International
Transport Roth v Secretary of State for the Home Department [2002] EWCA Civ
158, [2003] QB 728, [71]: ˜In its present state of evolution, the British system
may be said to stand at an intermediate stage between parliamentary supremacy
and constitutional supremacy™.
(The common law radicalism of which these statements are illustrative exam-
ples has not gone unchallenged: for criticism, see Gri¬th, ˜The brave new world
of Sir John Laws™ (2000) 63 MLR 159; Poole, ˜Back to the future? Unearthing the
theory of common law constitutionalism™ (2003) 23 OJLS 435 and A Tomkins,
Our Republican Constitution (2005), ch 1.)
For now, however, what is of relevance are not the merits (or otherwise) of
common law radicalism, but the challenge it poses for the sovereignty of
Parliament. To this end, two cases will now be considered.

Robinson v Secretary of State for Northern Ireland [2002] UKHL 32 (HL)
Robinson concerned a challenge to the legality of the election in November 2001
of David Trimble and Mark Durkan as First Minister and Deputy First Minister,
respectively, of Northern Ireland. Section 16(1) of the Northern Ireland Act
1998 provides that ˜Each Assembly shall, within a period of six weeks beginning
with its ¬rst meeting, elect from among its members the First Minister and the
Deputy First Minister™. Section 16(3) provides that ˜Two candidates standing
jointly shall not be elected to the two o¬ces without the support of a majority
of the members voting in the election, a majority of the designated Nationalists
voting and a majority of the designated Unionists voting™. Section 16 leaves
open the question of what is to happen if the six-week period expires with no
First Minister and Deputy First Minister being elected. The nearest the Act
comes to answering this question is in section 32(3), which provides that ˜If the
period mentioned in section 16 ends without a First Minister and a Deputy First
Minister having been elected, the Secretary of State shall propose a date for the
poll for the election of the next Assembly™ (emphasis added).
Since devolution to Northern Ireland under the 1998 Act commenced it has
been suspended and restored on numerous occasions. When it was restored on
23 September 2001, the o¬ces of First Minister and Deputy First Minister were
vacant. The six-week period provided for by section 16(1) would therefore
expire on 4 November 2001. On 2 November the Assembly held an election to
¬ll the o¬ces but the candidates (Messrs Trimble and Durkan) did not receive
the measure of cross-community support required under section 16(3). After
a number of previously non-designated members of the Assembly redesignated
themselves as Unionists for the purpose of electing a First Minister and Deputy
First Minister a further election was held on 6 November 2001, at which the
candidates did obtain the support they needed.
Robinson, a leading member of the DUP (and a member of the Assembly),
challenged the legality of this election. He argued that the Assembly had no
69 The ideas of the constitution

power to elect a First Minister and Deputy First Minister after the expiry
of the six-week period and that fresh elections to the Assembly should have
been called, in accordance with section 32(3). The Assembly, according to
this argument, is a creature of statute and has only such powers as are
conferred upon it by the 1998 Act. The Court of Appeal of Northern Ireland
held, by a two-to-one majority, that the election was lawful. On appeal, the
House of Lords agreed, albeit by a three-to-two majority. The contrast
between the approaches of the judges in the majority and those in the minor-
ity is striking. Consider, for example, the following extracts from the opinions
of Lords Bingham and Ho¬mann (in the majority) and Lord Hutton (in
the minority).

Lord Bingham: . . . The 1998 Act . . . was passed to implement the Belfast Agreement, which
was itself reached, after much travail, in an attempt to end decades of bloodshed and cen-
turies of antagonism. The solution was seen to lie in participation by the Unionist and
Nationalist communities in shared political institutions . . . If these shared institutions were
to deliver the benefits which their progenitors intended, they had to have time to operate
and take root.
The 1998 Act does not set out all the constitutional provisions applicable to Northern
Ireland, but it is in effect a constitution. So to categorise the Act is not to relieve the courts
of their duty to interpret the constitutional provisions in issue. But the provisions should, con-
sistently with the language used, be interpreted generously and purposively, bearing in mind
the values which the constitutional provisions are intended to embody. [Counsel for
Robinson] submitted that the resolution of political problems by resort to the vote of the
people in a free election lies at the heart of any democracy and that this democratic princi-
ple is one embodied in this constitution. He is of course correct . . . But elections held with
undue frequency are not necessarily productive. While elections may produce solutions they
can also deepen divisions. Nor is the democratic ideal the only constitutional ideal which this
constitution should be understood to embody. It is in general desirable that the government
should be carried on, that there be no governmental vacuum.

Lord Hoffmann: . . . [Counsel for Robinson] politely but firmly reminded your Lordships that
your function was to construe and apply the language of Parliament and not merely to
choose what might appear on political grounds to be the most convenient solution. It is not
for this House, in its judicial capacity, to say that new elections in Northern Ireland would be
politically inexpedient . . . I unreservedly accept those principles. A judicial decision must
rest on ˜reasons that in their generality and their neutrality transcend any immediate result
that is involved™ [citing Wechsler, ˜Towards neutral principles of constitutional law™ (1959) 73
Harvard LR 1]. But I think that the construction which I favour satisfies those requirements.
The long title of the [1998] Act is ˜to make new provision for the government of Northern
Ireland for the purpose of implementing the agreement reached at multi-party talks on
Northern Ireland . . .™. According to established principles of interpretation, the Act must be
construed against the background of the political situation in Northern Ireland and the
principles laid down by the Belfast Agreement for a new start. These facts and documents
70 British Government and the Constitution

form part of the admissible background for the construction of the Act just as much as the
Revolution, the Convention and the Federalist Papers are the background to construing the
Constitution of the United States.


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