Lord Millet' Dissent In Ghaidan

Front 1

He does not think we should discriminate against the gays

Back 1

BUT does not agree with the interpretation of his peers

Front 2

Secondly, the obligation arises (or at least has significance) only where the legislation in its natural and ordinary meaning, that is to say as construed in accordance with normal principles, is incompatible with the Convention. Ordinary principles of statutory construction include a presumption that Parliament does not intend to legislate in a way which would put the United Kingdom in breach of its international obligations. This presumption will often be sufficient to enable the court to interpret the statute in a way will make it compatible with the Convention without recourse to section 3 . It is only where this is not the case that section 3 comes into play. When it does, it obliges the court to give an abnormal construction to the statutory language and one which cannot be achieved by resort to standard principles and presumptions.

Back 2

Thirdly, there are limits to the extent to which section 3 may be applied to render existing legislation compatible with the Convention. The presence of section 4 alone shows this to be the case, for it presupposes the existence of cases where the offending legislation cannot be rendered compatible with the Convention by the application of section 3.

Front 3

There are two limitations to its application which are expressed in section 3 itself. In the first place, the exercise which the court is called on to perform is still one of interpretation, not legislation: (legislation must be " read and given effect to"). Section 3 is in marked contrast with the provisions in the constitutions of former colonial territories in relation to existing laws which are incompatible with constitutional rights. Such provisions commonly authorise the court to construe such laws "with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the constitution".

Back 3

This is a quasi-legislative power, not a purely interpretative one; for the court is not constrained by the language of the statute in question, which it may modify (i e amend) in order to bring it into conformity with the constitution.

Front 4

In R v Hughes [2002] 2 AC 259 the Privy Council deleted (i e repealed) express words in the statute. In doing so it exercised a legislative, not an interpretative, power. Such a power is appropriate where the constitution is the supreme law, and where statutes inconsistent with the constitution are to the extent of the inconsistency automatically rendered void by the constitution.

Back 4

But it is not appropriate in the United Kingdom, which has no written constitution and where the prevailing constitutional doctrine is based on the supremacy of Parliament rather than the separation of powers. Accordingly section 4(6) provides that legislation which is incompatible with a Convention right is not thereby rendered void; nor is it invalidated by the making of a declaration of incompatibility. It continues in full force and effect unless and until it is repealed or amended by Parliament, which can decide whether to change the law and if so from what date and whether retrospectively or not.

Front 5

In other cases ( Bellinger v Bellinger (Lord Chancellor intervening) [2003] 2 AC 467 is an example) questions of social policy have arisen which ought properly to be left to Parliament and not decided by the judges. I shall return to this point later.

Back 5

The court must "strive to find a possibleinterpretation compatible with Convention rights" (emphasis added): R v A [2002] 1 AC 45 , 67, *586 para 44, per Lord Steyn. But it is not entitled to give it an impossible one, however much it would wish to do so.

Front 6

Says court is straining words to give it a meaning they want

Back 6

Not allowed under s 3 in his opinion --> In my view section 3 does not entitle the court to supply words which are inconsistent with a fundamental feature of the legislative scheme; nor to repeal, delete, or contradict the language of the offending statute

Front 7

Thus, while it may be possible to read "cats" as meaning "cats or dogs" (on the footing that the essential concept is that of domestic pets generally rather than felines particularly), it would obviously not be possible to read "Siamese cats" as meaning "Siamese cats or dogs"

Reading the word "cats" as meaning "cats or dogs" in these circumstances would be to usurp the function of Parliament.

Back 7

.