53. Paragraphs 2 and 3 of Schedule 1 to the Rent Act 1977 as amended by the Housing Act 1988 provide:
"2(1) 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 of the dwelling-house by succession if and so long as he or she occupies the dwelling-house as his or her home.
(2) 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.
3(1) Where paragraph 2 above does not apply, but 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 2 years immediately before his death then, after his death, that person or if there is more than one such person such one of them as may be decided by agreement, or in default of agreement by the county court, shall be entitled to an assured tenancy."
54. As my noble and learned friend Lord Nicholls of Birkenhead has observed, and as this House decided in Fitzpatrick v Sterling Housing Association Ltd  1 AC 27, on an ordinary reading of paragraph 2(2) the survivor of two persons of the opposite sex living together as man and wife in a dwelling house which is subject to the Rent Acts has a statutory right to succeed to the statutory tenancy of the deceased tenant; but the survivor of two persons of the same sex living together in similar circumstances has no such right. He or she merely has a right, in competition with other members of the deceased tenant's family, to claim an assured tenancy; but not only is an assured tenancy less advantageous than a statutory tenancy but the survivor's entitlement, if disputed by other members of the late tenant's family, is at the discretion of the court.
55. I agree with all my noble and learned friends, whose speeches I have had the advantage of reading in draft, that such discriminatory treatment of homosexual couples is incompatible with their Convention rights and cannot be justified by any identifiable legitimate aim. I am, moreover, satisfied by the powerful and convincing speech of my noble and learned friend Baroness Hale of Richmond that for the reasons she gives such treatment is not only incompatible with the Convention but is unacceptable in a modern democratic society at the beginning of the 21st century. This is not to say that it was always, or even until fairly recently, unacceptable; but times change, and with them society's perceptions change also (a commonplace usually dignified by being rendered in Latin).
56. It follows that, unless the court can apply section 3 of the Human Rights Act 1998 to extend the reach of para 2(2) to the survivor of a couple of the same sex, it must consider making a declaration of incompatibility under section 4. The making of such a declaration is in the court's discretion (section 4 provides only that the court "may" make one); and it may be a matter for debate whether it would be appropriate to do so at a time when not merely has the Government announced its intention to bring forward corrective legislation in due course (as in Bellinger v Bellinger  2 AC 467) but Parliament is currently engaged in enacting remedial legislation. It is, however, unnecessary to enter upon this question, for there is a clear majority in favour of the view that section 3 can be applied to interpret para 2(2) in a way which renders legislative intervention unnecessary.
57. I have the misfortune to be unable to agree with this conclusion. I have given long and anxious consideration to the question whether, in the interests of unanimity, I should suppress my dissent, but I have come to the conclusion that I should not. The question 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 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 fundamental constitutional principle should be the consequence of deliberate legislative action and not judicial activism, however well meaning.
58. Sections 3 and 4 of the Human Rights Act 1998, so far as material, provide as follows:
"3. Interpretation of legislation
(1) 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.
4. Declaration of incompatibility
(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given
59. Several points may be made at the outset. First, the requirement in Section 3 is obligatory. In R v Director of Public Prosecutions, Ex p Kebilene  2 AC 326, 373 Lord Cooke of Thorndon described the section as "a strong adjuration" by Parliament to read and give effect to legislation in a way which is compatible with Convention rights. With respect, it is more than this. It is a command. Legislation "must" be read and given effect to in a way which is compatible with Convention rights. There is no residual discretion to disobey the obligation which the section imposes.
60. 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.
61. This is a difficult exercise, for it is one which the courts have not hitherto been accustomed to perform, and where they must accordingly establish their own ground rules for the first time. It is also dangerously seductive, for there is bound to be a temptation to apply the section beyond its proper scope and trespass upon the prerogative of Parliament in what will almost invariably be a good cause.
62. 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.
63. 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".
64. 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 (ie amend) in order to bring it into conformity with the constitution. In R v Hughes  2 AC 259 the Privy Council deleted (ie 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 (particularly one based on the separation of powers) is the supreme law, and where statutes inconsistent with the constitution are to the extent of the inconsistency automatically rendered void by the constitution. A finding of inconsistency may leave a lacuna in the statute book which in many cases must be filled without delay if chaos is to be avoided and which can be filled only by the exercise of a legislative power. 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.
65. In some cases (In re S (Minors)(Care Order: Implementation of Care Plan)  2 AC 291 and R (Anderson) v Secretary of State for the Home Department  1 AC 837 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. That is not the present case. In other cases (Bellinger v Bellinger  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.
66. In the second place, section 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.
67. This does not mean that it is necessary to identify an ambiguity or absurdity in the statute (in the sense of being open to more than one interpretation) before giving it an abnormal meaning in order to bring it into conformity with a Convention right: see R v A (No 2)  1 AC 45, 67, 87 per Lord Steyn and Lord Hope of Craighead. I respectfully agree with my noble and learned friend Lord Nicholls of Birkenhead that even if, construed in accordance with ordinary principles of construction, the meaning of the legislation admits of no doubt, section 3 may require it to be given a different meaning. It means only that the court must take the language of the statute as it finds it and give it a meaning which, however unnatural or unreasonable, is intellectually defensible. It 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" (emphasis added)
R v A  1 AC 45, 67, para 44 per Lord Steyn. But it is not entitled to give it an impossible one, however much it would wish to do so.
68. 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. As Lord Nicholls said in Rojas Berllaque (Attorney General for Gibraltar intervening)  1 WLR 201, 208-209, para 24:
"There may of course be cases where an offending law does not lend itself to a sensible interpretation which would conform to the relevant Constitution".
This is more likely to be the case in the United Kingdom where the court's role is exclusively interpretative than in those territories (which include Gibraltar) where it is quasi-legislative.
69. I doubt that the principles which I have endeavoured to state would be disputed; disagreement is likely to lie in their application in a particular case. So it may be helpful if I give some examples of the way in which I see section 3 as operating.
70. In the course of his helpful argument counsel for the Secretary of State, who did not resist the application of section 3, acknowledged that it could not be used to read "black" as meaning "white". That must be correct. Words cannot mean their opposite; "black" cannot mean "not black". But they may include their opposite. In some contexts it may be possible to read "black" as meaning "black or white"; in other contexts it may be impossible to do so. It all depends on whether "blackness" is the essential feature of the statutory scheme; and while the court may look behind the words of the statute they cannot be disregarded or given no weight, for they are the medium by which Parliament expresses its intention.
71. Again, "red, blue or green" cannot be read as meaning "red, blue, green or yellow"; the specification of three only of the four primary colours indicates a deliberate omission of the fourth (unless, of course, this can be shown to be an error). Section 3 cannot be used to supply the missing colour, for this would be not to interpret the statutory language but to contradict it.
72. The limits on the application of section 3 may thus be in part at least linguistic, as in the examples I have given, but they may also be derived from a consideration of the legislative history of the offending statute. 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". The particularity of the expression "Siamese cats" would preclude its extension to other species of cat, let alone dogs. But suppose the statute merely said "cats", and that this was the result of successive amendments to the statute as originally enacted. If this had said "Siamese cats", and had twice been amended, first to read "Siamese or Persian cats" and then to read simply "cats", it would not, in my opinion, be possible to read the word "cats" as including "dogs"; the legislative history would demonstrate that, while Parliament had successively widened the scope of the statute, it had consistently legislated in relation to felines, and had left its possible extension to other domestic pets for future consideration. Reading the word "cats" as meaning "cats or dogs" in these circumstances would be to usurp the function of Parliament.
73. In R v A  1 AC 45 the offending statute had laid down an elaborate scheme to prevent the defendant to a charge of rape from adducing certain kinds of evidence at his trial. Read without qualification this could exclude logically relevant evidence favourable to the accused and deny him a fair trial contrary to article 6 of the Convention. The House read the statute as subject to the implied proviso that evidence or questioning which was required to ensure a fair trial should not be treated as inadmissible. The House supplied a missing qualification which significantly limited the operation of the statute but which did not contradict any of its fundamental features. As Lord Steyn observed (at p 68, para 45) it would be unrealistic to suppose that Parliament, if alerted to the problem, would have wished to deny an accused person the right to put forward a full and complete defence by advancing truly probative material.
74. For my own part, I have no difficulty with the conclusion which the House reached in that case. The qualification which it supplied glossed but did not contradict anything in the relevant statute. Neither expressly nor implicitly did the statute require logically probative evidence to be excluded if its exclusion would have the effect of denying the accused a fair trial. The meaning of the statute was not ambiguous, and in the absence of section 3 the proviso could not have been implied. But if it had been expressed it would not have made the statute self-contradictory or produced a nonsense.
75. Lord Hope of Craighead, who had more difficulty in the application of section 3, observed (loc cit) that compatibility was to be achieved only so far as this was possible, and that it would plainly not be possible if the legislation contained provisions which expressly contradicted the meaning which the enactment would have to be given to make it compatible. He added that the same result must follow if they did so by necessary implication, as this too was a means of identifying the plain intention of Parliament. Lord Steyn said the same in Anderson  1 AC 837, p 894, para 59:
"Section 3(1) is not available where the suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute" (emphasis added)
citing Lord Nicholls in In re S (Minors)  2 AC 291, 313-314, para 41 in support.
76. I respectfully agree with this approach, though I would add a caveat. I do not understand the word "implication" as entitling the court to imply words which would render the statute incompatible with the Convention; that would be entirely contrary to the spirit of section 3. They mean only that the incompatibility need not be explicit; but if not then it must be implicit, that it to say manifest on the face of the statute.
77. It is obvious that, if paragraph 2(2) of Schedule 1 to the Rent Act 1977 as amended had referred expressly to "a person of the opposite sex" who was living with the original tenant as his or her husband or wife, it would not be possible to bring the paragraph into conformity with the Convention by resort to section 3. The question is whether the words "of the opposite sex" are implicit; for if they are, then same result must follow. Reading the paragraph as referring to persons whether of the same or opposite sex would equally contradict the legislative intent in either case. I agree that the operation of section 3 does not depend critically upon the form of words found in the statute; the court is not engaged in a parlour game. But it does depend upon identifying the essential features of the legislative scheme; and these must be gathered in part at least from the words that Parliament has chosen to use. Drawing the line between the express and the implicit would be to engage in precisely that form of semantic lottery to which the majority rightly object.
78. In the present case both the language of paragraph 2(2) and its legislative history show that the essential feature of the relationship which Parliament had in contemplation was an open relationship between persons of the opposite sex. I take the language first. Paragraph 2(1) provides that "the surviving spouse" of the deceased tenant shall succeed to the statutory tenancy. The word "spouse" means a party to a lawful marriage. It may refer indifferently to a lawfully wedded husband or a lawfully wedded wife, and to this extent is not gender specific. But it is gender specific in relation to the other party to the relationship. Marriage is the lawful union of a man and a woman. It is a legal relationship between persons of the opposite sex. A man's spouse must be a woman; a woman's spouse must be a man. This is of the very essence of the relationship, which need not be loving, sexual, stable, faithful, long-lasting, or contented. Although it may be brought to an end as a legal relationship only by death or an order of the court, its demise as a factual relationship will usually have ended long before that.
79. Another basic feature of marriage is that it is an openly acknowledged relationship. From the earliest times marriage has involved a public commitment by the parties to each other. Whether attended by elaborate ceremonial or relatively informal, and whether religious or secular, its essence consists of a public acknowledgment of mutual commitment. Even primitive societies demand this, because the relationship does not concern only the immediate parties to it. The law may enable them to dispense with formalities, but not with public commitment. In some Polynesian societies, it is said, young men and women marry by the simple process of taking a meal together in public.
80. Paragraph 2(2) provides that 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". Mathematically there are four possibilities: "his wife", "her wife", "her husband" and "his husband." But two of these are nonsense. A man cannot have a husband; and a woman cannot have a wife. In order to be treated as the spouse of the original tenant, a person must have been living openly with the tenant as his wife or her husband. In any given case, of course, only one person can qualify. If the tenant was a man, that person must have been his wife or have lived with him as his wife; if a woman, he must have been her husband or lived with her as such. The paragraph is gender specific.
81. It seems clear that Parliament contemplated an open relationship, whether legal (paragraph 2(1)) or de facto (paragraph 2(2)), the essential feature of which is that, unlike other relationships, it subsists and can subsist only between persons of the opposite sex. A loving relationship between persons of the same sex may share many of the features of a de facto marriage. It may, as Baroness Hale describes it, be "marriage-like"; but it is not even de facto a marriage, because it lacks the defining feature of marriage.
82. In my opinion the words "of the opposite sex" are unmistakably implicit. Although not expressed in terms, they are manifest on the face of the statute. The parties are not required merely to live together but to do so as husband and wife. They are not merely given the same rights as married persons but are treated as if they were married persons. If the draftsman had inserted the words "being of the opposite sex" expressly he would have produced a comical tautology. If he had inserted the words "whether of the same or opposite sex" he would have produced a self-contradictory nonsense. Persons cannot be or be treated as married to each other or live together as husband and wife unless they are of the opposite sex. It is noticeable that, now that Parliament is introducing remedial legislation, it has not sought to do anything as silly as to treat same sex relationships as marriages, whether legal or de facto. It pays them the respect to which they are entitled by treating them as conceptually different but entitled to equality of treatment.