The difficulty of this issue is illustrated in the aforementioned case where Article 3 of the HRA was invoked.
According to Article 3 of the HRA, "[s]o far as possible to do so, primary legislations and secondary legislation should be read and given effect in a way which is compatible with Convention rights" (HRA 1998, Art 3), referring to the European Convention on Human Rights and Fundamental Freedoms. By virtue of this provision, the conventional manner that statutory interpretation under the act, is therefore challenged, such that instead of giving effect to the intention of the legislators, which enacted particular statutes. statutory interpretation must now proceed in a manner that gives effect to the original intent of those who crafted the HRA provision. This shift away from the conventional procedure, therefore leads judges to stray in the grey area between judicial interpretation and law making, which endangers them of judicial vandalism and usurpation Parliament’s will. …
In Ghaidan v Godin-Mendoza [2004], the House of Lords dismissed an appeal by Ahmad Ghaidan to overturn a previous decision of the Court of Appeal. which named Juan Godin-Mendoza as successor to the tenancy of the flat Godin-Mendoza lived in until the death of his partner of the same sex by interpreting the words "as his or her wife or husband" under the Rent Act 1977 to mean "as if they were his wife or husband" by virtue of Art 3 of the HRA (Ghaidan v Godin-Mendoza [2004], para. 51). The decision to dismiss the appeal was arrived at, by virtue of the judges’ interpretation of Article 3 of the HRA, which was deemed appropriate in this case, with one dissenting opinion from Lord Millet (para. 102). Based on the given case, Lord Nicholls (para. 4) identified the relevant statutory provisions as paragraphs 2 and 3 of schedule 1 to the Rent Act 1977:
21. 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.
22. 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.
31. 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