Mr Justice Munby :
- I have before me two applications for judicial review which raise important questions as to the relationship between religious law and secular law in this particular instance, secular discrimination law as embodied in the Race Relations Act 1976.
- These questions arise in the context of a dispute within our Jewish community about the propriety and legality of the criteria governing admission to a well-known Jewish school in London, JFS, formerly the Jews' Free School. The issues and the outcome are therefore of great importance for the various sections of the Jewish community. But they are also important to people of all religions, not least because they impact potentially upon 'faith schools' of all faiths and denominations.
The factual background
- On one level the facts are both straightforward and, in large measure, not contentious. But to understand the way in which the important point at the heart of this litigation arises, it is necessary, and not least for the assistance of a secular audience, to set out in some detail various matters to do with the Jewish community and the Jewish faith, before turning to the events which have given rise to the proceedings.
- The content of a religious faith and the nature of its beliefs, observances and practices is, for a secular court, a matter of fact to be proved in the usual way by evidence. The court is not concerned to assess the validity of such matters, let alone to adjudicate on religious controversies within a religious community or between different religious communities (see further below). For the court, therefore, religion is simply a matter of fact the fact of what an individual or a number of individuals or a community believe, profess or practice and not a matter of belief. That said, the court must be sensitive to the fact that religious belief, observance and practice is central to the lives (here, and some believe hereafter) of countless people, whose beliefs are accordingly entitled to great respect; not least where, as in the present case, the beliefs are those of one of the oldest, greatest and most respected of the world's great religions. I trust, therefore, that I have correctly understood the evidence on these matters which has been put before me and that nothing I say will cause what is certainly not intended any offence to any section of the Jewish or any other community.
- Before turning to the evidence there is one other point I must make. It is a feature of a number of religions that there are differences of view as between those who believe themselves to be members of or adherents to that religion as to what the criteria for membership or adherence are and, accordingly, as to who is or is not a member of or adherent to that faith. X, Y and Z may each in good conscience believe that he or she is a member of or adherent to the A faith, in circumstances where although X accepts that Y is a member of or adherent to the A faith (and vice versa) neither accepts that Z is, even though it may be that Z is willing to afford to X and Y the recognition of a shared faith which X and Y are unable to extend to Z. These are not matters which a secular court can adjudicate upon, yet practical convenience demands that a secular court, if only for descriptive purposes, uses the same language as the protagonists, even where they cannot agree between themselves.
- As will become apparent, the religious issue at the heart of this controversy though not, I emphasise, a matter for determination by me is the answer to the question, Who is a Jew? And, as will also become apparent, that is not a matter on which all those who conscientiously believe themselves to be Jews agree. I emphasise the point to make clear that my use hereafter of the word Jew necessarily takes its flavour from the particular context. Although I have tried always to make clear the particular sense in which I am using the word, I make clear that I do not necessarily use it in the sense in which any particular section of those who consider themselves to be part of the Jewish community would use it. This is unavoidable. I trust that it will be understood and cause neither misunderstanding nor offence.
The factual background: the British Jewish community
- I turn therefore to the evidence I have about the British Jewish community.
- The Report of the Commission on Representation of the Interests of the British Jewish Community, A Community of Communities, published in March 2000 under the auspices of the Institute for Jewish Policy Research, estimates that of the Jewish population in the United Kingdom (estimated in 1996 to have numbered 283,000) approximately 70% are formally linked to a synagogue whilst the other 30% are religiously unaffiliated. It comments that "religious life today is more diverse than it was during the first half of the twentieth century." Until the 1940s over 97% of synagogue membership was of Orthodox (United Synagogue) synagogues. Current membership of British Jews affiliated to a synagogue, according to the Report, is distributed as follows:
| Orthodox | 60.7% |
| Progressive (Reform and Liberal) | 27.3% |
| Strictly Orthodox (Haredi) | 10.5% |
| Masorti (Conservative) | 1.5% |
The factual background: Jewish law and belief
- Evidence of Orthodox Jewish law and belief has been provided by David Frei, Registrar of the London Beth Din (Court of the Chief Rabbi), in a letter to the Treasury Solicitor dated 5 February 2008 and in a witness statement dated 6 February 2008, and by Dayan Menachem Gelley, the Senior Dayan of the London Beth Din, in a witness statement dated 26 February 2008. I should add that the Chief Rabbi, Sir Jonathan Sacks, associates himself expressly with Dayan Gelley's evidence, saying in a letter dated 26 February 2008 written to the Treasury Solicitor:
"This statement sets out fully the essential principles of Jewish law which need to be understood with respect to the issues in this case. Dayan Gelley's statement also accurately records the application of Jewish law to the individual cases concerned."
- Evidence of Reform, Liberal and Masorti Jewish law and belief has been provided by, respectively, Rabbi Dr Tony Bayfield, Head of The Movement for Reform Judaism, in a letter to the Treasury Solicitor dated 7 February 2008, Rabbi Danny Rich, Chief Executive of Liberal Judaism, in a letter to the Treasury Solicitor dated 31 January 2008, and Michael Gluckman, Executive Director of The Assembly of Masorti Synagogues, in a letter to the Treasury Solicitor dated 5 February 2008.
- This material is of great significance and interest but for present purposes can be summarised, I hope accurately, comparatively briefly.
The factual background: Jewish law and belief Orthodox Judaism
- Dayan Gelley characterises Orthodox Judaism as "the formulation of Judaism which its adherents believe is an accurate interpretation and application of the laws and ethics that derive from the Torah. In this context the "Torah" means both the Written Torah and Oral Torah." He continues:
"There is a fundamental divide between the Orthodox Jewish movements generally and the non-Orthodox ones, because of other denominations' doubts concerning the revelation of the Torah, and because of their rejection of Jewish legal precedent as binding. As such, Orthodox groups characterise non-Orthodox forms of Judaism as unacceptable variations in Jewish religious practice."
As Dayan Gelley points out, such differences between religious denominations are, of course, not unique to Judaism. He draws parallels with Christianity, where Protestant, Roman Catholic and Christian Orthodox beliefs are distinct denominations within Christianity, and with Islam, where there are the Sunni and Shia movements. He referred to the recent pronouncement of the Congregation for the Doctrine of the Faith, issued with the full authority of the Pope (see The Times, 11 July 2007), to the effect that "only Catholicism was fully Christ's Church" and that the Protestant and Orthodox faiths are "not proper Churches."
- However, as Mr Frei makes clear, "Orthodox Jews do believe that all Jews have an obligation to become educated about the Jewish faith and to follow Jewish law." Dayan Gelley elaborates the point:
"Education about the Jewish faith is considered by Orthodox Jews to be a fundamental religious obligation on all Jews. A person may be Jewish, but the Jewish faith is complex and often demanding. An understanding and appreciation of the Jewish faith takes many years to cultivate, through learning, debate and thinking. This is one of the primary purposes of schools such as JFS, which seek to help those who are Jewish (or who are undergoing conversion) understand, learn about and follow their faith."
- Both Mr Frei and Dayan Gelley make clear that in Orthodox Judaism Jewish status is, as Dayan Gelley, puts it "solely and irreducibly a religious issue". Accordingly, as Mr Frei explains, "attendance at the services of a synagogue has no bearing on a person's Jewish status as a matter of Jewish religious law. Being Jewish is a matter of Jewish status, under Jewish religious law." He points out that "Jewish status in Orthodox Judaism is thus different from the notion of belonging to a faith in proselytizing religions such as Christianity and Islam." (Judaism is not a proselytizing religion, though anyone can convert to Judaism.)
- Within Orthodox Judaism the criterion of Jewish identity, accepted for millennia within Jewish Orthodoxy, is that the person concerned is either (a) born to a Jewish mother or (b) has undergone a valid Orthodox conversion to Judaism.
- The usual means of showing Jewish status is by producing evidence that the person's parents or maternal grandparents were married in an Orthodox Jewish wedding ceremony this providing good evidence because permission to marry in an Orthodox ceremony is granted only if the couple are Jewish. In the case of conversion, a valid Orthodox conversion certificate must be produced. A person who has undergone a valid Orthodox conversion to Judaism is Jewish for all purposes, so the children born to a woman who has previously undergone an Orthodox conversion are Jewish.
- The London Beth Din recognises most Orthodox conversions from around the world but does not recognise non-Orthodox conversions. This is because, as Mr Frei explains, non-Orthodox Jewish conversions apply entirely different criteria for conversion, and do not require converts to subscribe fully to the tenets of Orthodox Judaism. As Dayan Gelley points out, this is similar to the different denominations within Christianity; he gives the example of the Roman Catholic Church requiring a Protestant to undergo a process of conversion before accepting a person as a member of the Catholic faith.
- The stringency of the requirements for a valid Orthodox conversion is explained by Dayan Gelley:
"A convert's state of mind at the moment of conversion (ie immersion in a mikveh) is absolutely vital to the validity of an Orthodox conversion.
If, for example, the convert was prepared to accept some or even most of the laws of Orthodox Judaism, but was not prepared to accept certain laws or even one law (eg the laws concerning Sabbath observance or the dietary laws) the conversion would be invalid because the convert was unwilling to accept the Orthodox Jewish faith in its entirety at the moment of conversion.
Indeed, it is a well established point of Jewish Law that if a Beth Din discovers new information relevant to the time of a conversion, it should consider whether the conversion was valid, even if the conversion was not recent or took place in a different jurisdiction."
As Mr Frei puts it, "at the moment of immersion in a mikveh" the convert must make "a total and unconditional commitment to accept the tenets of orthodoxy and practice its detailed laws (including those with which they may not yet be familiar)".
- An article by the Chief Rabbi in the Jewish Chronicle dated 8 July 2005 is illuminating in explaining the Orthodox Jewish approach to conversion:
"Citizenship in liberal democracies is a secular concept. Conversion, by contrast, is irreducibly religious
It involves the adoption of a religious way of life. Secular conversion to a religious identity is logically impossible.
The nature of this religious dimension can be summed up in two Hebrew words: kabbalat hamitzvot, acceptance of the commands. This can be construed strictly or leniently. Conversion is an unusual case in which the rigor of the law is left to the discretion of the court. But the condition exists, however construed. Conversion must involve acceptance of the commands.
If a convert, by his or her behaviour, demonstrates a genuine commitment to Jewish law and practice at the time of conversion, it remains valid even if he or she later abandons it. A lapsed convert is a lapsed Jew, not a lapsed gentile. If, however, there was no significant religious observance at the time, the conversion is void. Acceptance of the commands is constitutive of conversion. Without it, conversion cannot be said to have taken place.
Converting to Judaism is a serious undertaking, because Judaism is not a mere creed. It involves a distinctive, detailed way of life. When people ask me why conversion to Judaism takes so long, I ask them to consider other cases of changed identity. How long does it take for a Briton to become an Italian, not just legally but linguistically, culturally, behaviourally? It takes time.
The analogy is imperfect, but it helps to explain the most puzzling aspect of conversion today: the sometimes different standards between rabbinical courts in Israel and Britain. Several decades ago an Israeli Chief Rabbi argued that Israeli rabbinical courts should be more lenient than their counterparts in the Diaspora. His reasons were technical, but they make sense. It is easier to learn Italian if you are living in Italy. In Israel, many aspects of Jewish identity are reinforced by the surrounding culture. Its language is the language of the Bible. Its landscape is saturated by Jewish history. Shabbat is the day of rest. The calendar is Jewish."
The factual background: Jewish law and belief Reform, Liberal and Masorti Judaism
- All the evidence I have seen is to the effect that all Jewish denominations treat being Jewish as a matter of status, not a matter of creed or religious observance. Again, all the evidence I have seen is to the effect that, as Rabbi Bayfield of The Movement for Reform Judaism puts it, the entire Jewish world, both in this country and globally, would say that Jewish identity is determined by either descent or conversion. The evidence is likewise at one in indicating that, with the sole exception of Liberal Judaism, which regards as Jewish a child either of whose parents is Jewish, all Jewish denominations, including Reform and Masorti Jews, follow the matrilineal tradition. Rabbi Rich explains that Liberal Judaism "affirms the absolute equality of men and women so that a Jewish father is equivalent for status purposes to a Jewish mother."
- So, common to all Jewish denominations is a belief that being Jewish is a matter of status, defined in terms of descent or conversion, and not a matter of creed or religious observance.
- For present purposes, given the facts of the particular cases with which I am concerned, the most important differences between the various Jewish denominations are in respect of conversion. This, again, is common ground in all the evidence before me. I have already explained the position of Orthodox Judaism. Mr Gluckman, explaining the position of Masorti Judaism, says that to be recognised a conversion must have been "in accordance with the standards of the Masorti Beth Din", adding "We strive for inclusion wherever possible
our aim is to welcome and include people."
- Rabbi Bayfield, explaining the position of Reform Judaism, says:
"When it comes to matters of Jewish status we are more liberal than the O[ffice of the] C[hief] R[abbi] and adopt a more inclusivist strategy. This applies particularly in the area of conversion where we are keen to count in as many people who wish to define themselves as Jews as possible
our formal requirements for conversion are almost exactly the same as those of Orthodoxy but we are less exacting and more 'pluralistic' in the demands we make in terms of religious observance.
The Movement for Reform Judaism favours a much more liberal and inclusive definition of Jewish status than the OCR but the fundamentals descent and conversion are the same."
He adds:
"The crucial difference between the Movement for Reform Judaism and the OCR/United Synagogue is that we will accept the documentation of any reputable Jewish authority throughout the world whereas they are much more restrictive."
- Rabbi Rich, explaining the position of Liberal Judaism, says that it is guided by the following principles: affording the benefit of the doubt where an individual affirms something to be true or where documentation or other evidence is difficult to obtain or unavailable; a wish to be inclusive, by which a person recognised as Jewish by one rabbinic authority (even if it differs from our own) should not in virtually all circumstances be rejected as Jewish by another authority; and the value of compassion coupled with common sense over excessive legalism.
The factual background: JFS
- JFS has had a long and distinguished history since 1732, traced in fascinating and illuminating detail by Dr Gerry Black in JFS A history of the Jews' Free School, London since 1732 published in 1998. Dr Black records (page 214) how in 1957 the Governors made an amendment to the draft Articles of Government submitted by the Ministry of Education to provide:
"The religious observance and instruction in the School shall be in accordance with the practice, rites and doctrines of the Jewish faith and for these purposes the decision of the Chief Rabbi of the United Hebrew Congregations of the British Commonwealth and Empire shall be final."
Dr Black contrasts the approach of the Governors in 1957 to their reaction in 1852 (described on pages 81-83) to a similar amendment proposed by the Jewish Board of Deputies, when, "wishing to retain the School's complete and absolute independence from ecclesiastical involvement", the Governors had "objected strongly", with the consequence that the amendment was dropped. "This time", he comments, "there was no one to object and argue that the School should be free from all ecclesiastical influence and control on the contrary it was welcomed."
- JFS's present Instrument of Government dated 18 October 2005 provides as follows in clause 8:
"Statement of School Ethos
Recognising its historic foundation, JFS will preserve and develop its religious character in accordance with the principles of orthodox Judaism, under the guidance of the Chief Rabbi of the United Hebrew Congregations of the British Commonwealth. The School aims to serve its community by providing education of the highest quality within the context of Jewish belief and practice. It encourages the understanding of the meaning of the significance of faith and promotes Jewish values for the experience of all its pupils."
- JFS's website, as accessed on 10 September 2007, contains the following under the heading 'The Jewish Dimension':
"The outlook and practice of the School is Orthodox. One of our aims is to ensure that Jewish values permeate the School. Our students reflect the very wide range of the religious spectrum of British Jewry. Whilst two thirds or more of our students have attended Jewish primary schools, a significant number of our Year 7 intake has not attended Jewish schools and some enter the School with little or no Jewish education. Many come from families who are totally committed to Judaism and Israel; others are unaware of Jewish belief and practice. We welcome this diversity and embrace the opportunity to have such a broad range of young people developing Jewish values together
"
- JFS's Race Equality Policy describes 'The School Community' as follows:
"JFS is a Voluntary Aided Comprehensive School for Jewish students whose range of religious affiliation within the Jewish faith is very wide
"
Under paragraph 1.2(b) it is said that:
"The School is committed, in accordance with Jewish principles, to the fair and equal treatment of all individuals. In particular, the School will disregard considerations based upon colour, disability, ethnic or racial origins, gender, marital status, nationality or religion, except as provided for in the School's authorised Admissions Policy."
Under the heading 'Aims' paragraph 3 includes the following:
"3.1 JFS strives to ensure that the culture and ethos of the School, are based upon orthodox Judaism as defined by the Office of the Chief Rabbi, are such that, whatever the heritage and origins of members of the school community, everyone is equally valued and treats one another with respect
3.2 Equal opportunities law does not override a Jewish school's right to give preference in admissions to Jewish students."
- An information sheet for teaching staff describes JFS as serving "almost the whole breadth of the Anglo-Jewish community in Greater London", says that "Our approach is modern but not 'trendy'; our values are thoroughly 'traditional', reflecting the School's Jewish ethos" and describes its students as coming from "the widest possible range of social, economic and religious backgrounds".
- According to JFS's website, just over half of all employees are non-Jewish. According to Dr Black (page 217), non-orthodox Jewish teachers are accepted for teaching secular subjects, but not for the Jewish Studies Department, because "the Governors contend that such appointments would represent a negation of many of the principles pupils are encouraged to accept and respect in their religious lessons." He comments:
"This implies that the principles of the Reform and Liberal synagogues are inimical to religion as taught in the School, even though the parents of many pupils are members of the Reform movements. The introduction of the policy can, of course, be traced to the successful efforts made by the United Synagogue and the London Board
to ensure a special place for the Chief Rabbi and the United Synagogue."
The factual background: JFS admissions policy
- JFS's admissions policy for 2007/08 (the policy for 2008/09 is identical) is set out in material part as follows:
"1.1 It is JFS ("the School") policy to admit up to the standard admissions number children who are recognised as being Jewish by the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth (OCR) or who have already enrolled upon or who have undertaken, with the consent of their parents, to follow any course of conversion to Judaism under the approval of the OCR.
1.2 In the event that the School is oversubscribed then only children who satisfy the provisions of paragraph 1.1 above will be considered for admission, in accordance with the oversubscription criteria set out in Section 2, below."
The words I have emphasised did not appear in the admissions policies for 2005/06 and 2006/07.
- The implications of this in light of the Chief Rabbi's interpretation of who is Jewish will be apparent. Dr Black comments (page 215):
"Controversy arises because conversions by the Reform or Liberal Synagogues do not come within the definition.
There is no requirement that the Jewish mother must be a practising Jewess or member of an orthodox synagogue. Anomalies abound. The accepted 'Jewish' mother whose child is eligible to go to JFS might now be a member of the Reform synagogue or of no synagogue, be an agnostic or an atheist that would not debar her child from entrance. An observant mother, who regularly attends synagogue and keeps a kosher home cannot enter her child at JFS if she, the mother, is Jewish by conversion under Reform or Liberal auspices."
As Ms Dinah Rose QC puts it on behalf of the claimant, the extent of religious observance practised by a family is wholly irrelevant to admission to JFS. The only consideration is whether the child is, within the OCR's understanding of the Halakah (Jewish law), a Jew, that is of Jewish descent in the maternal line or whose mother can satisfy the OCR that she properly converted before the birth of the child.
The factual background: the families
- Although the proceedings have been brought only in respect of E's son, M, there are two other families, also adversely affected by JFS's admissions policy, who support the claim. I shall refer to them as the L and S families. It is convenient before I go any further to summarise the facts so far as they relate to the three families. I start with M.
The factual background: the families E's son, M
- M's father, E, is a member of the Masorti New London Synagogue. He considers himself to be, and doubtless many others who consider themselves to be Jews would also consider him to be, of Jewish ethnic origin, to be of the Jewish faith and to be a practising Jew. His former wife, M's mother, is of Italian national and ethnic origin. Before she and E married she was converted to Judaism under the auspices of the rabbi of an independent Progressive synagogue. M is therefore, in E's eyes, and doubtless in the eyes of many who would consider themselves Jews, of mixed Jewish and (through the maternal line) Italian ethnic origin. According to E, M is recognised as Jewish by the Reform synagogues of Great Britain and the Assembly of Masorti synagogues, practises his own Jewish faith, prays in Hebrew and attends synagogue and a Jewish Youth Group.
- Because the OCR does not recognise the validity of conversions carried out by Progressive synagogues, it does not recognise M as Jewish.
The factual background: the families the L family
- Mrs L (Miss M as she then was) was converted in Israel on 22 September 1987 by the Special Rabbinical Court for Conversion established by the Chief Rabbinate of Israel. I have seen both a copy of the original certificate, in Hebrew, of her conversion, certified by the rabbinical authorities in Israel, and an English translation.
- Mr and Mrs L were married on 3 March 1988 by an Orthodox Rabbi in an Orthodox synagogue in New York. Again I have seen a copy of the original certificate, in both Hebrew and English, signed by the Rabbi.
- Mr L is a cohen, a descendant of the priests in the Temple. According to Dayan Gelley, "Jewish law prohibits a marriage between a cohen and a convert."
- On 8 April 1991 Mr L approached the London Beth Din concerning a brit or bris (ritual circumcision) for his son. Subsequently both Mr and Mrs L were seen by a Dayan and two Rabbis. The file note of that meeting says:
"They were told that we shall have to decide whether, in view of her closeness to Mr L and his family before her conversion and her subsequent marriage to him soon after, knowing that he is a Cohen and the marriage therefore forbidden, she could be said to have accepted the Jewish faith without reservation."
The final decision was reserved, being communicated to Mr and Mrs L in a letter from the Beth Din dated 25 April 1991:
"Due to the circumstances of Mrs L's contracting a forbidden marriage soon after her conversion we very much regret that we are unable to recognise the validity of her conversion. Consequently we cannot authorise a Mohel [ritual circumciser] to perform a Brit on your son."
- The decision is explained by Dayan Gelley in his witness statement dated 26 February 2008:
"it appeared to the LBD that
at the time of conversion, Mrs L intended to marry Mr L, despite knowing that such a marriage was contrary to Jewish law. She therefore did not accept the tenets of the Orthodox Jewish faith at the time of her conversion, and her conversion was accordingly held by the LBD to be invalid. Accordingly, Jewish status did not pass to Mrs L's children by matrilineal descent.
It is important to note that it is not the marriage between Mr and Mrs L that is itself of concern. Although this was a breach of Orthodox Jewish law (in the same way as not keeping the Sabbath, or breaching dietary laws are a breach of Jewish law), it is the fact that at the moment of her conversion she did not accept all the tenets of Orthodox Judaism that invalidates the conversion."
- There matters rested until November 2004 when Mr and Mrs L sought their daughter's admission to JFS. On 17 November 2004 JFS wrote to Mr and Mrs L enclosing a copy of a letter to JFS from the OCR dated 5 November 2004. That letter said, "Having followed up all the details
and on the basis of the information at present available, I have to inform you that this child cannot be regarded as Jewish." The letter from JFS to Mr and Mrs L said:
"Given this information, in relation to the School's Admissions Policy, your daughter will only be considered for admission in the event that JFS is unable to fill its standard admissions number with children who are recognised as being Jewish by the Office of the Chief Rabbi.
If you have any questions regarding your daughter's Jewish status they should be addressed directly to [the OCR]."
- Mr and Mrs L appealed to JFS's Admissions Appeal Panel. Its decision, in a letter dated 19 July 2005, was that JFS was to offer their daughter a place "as soon as the Office of the Chief Rabbi in London confirms that they recognise [her] as halachically Jewish."
- Mr and Mrs L wished to take legal action but being of limited means reluctantly decided they could not. But they support the action being brought by E.
- Mr and Mrs L are members of a Masorti synagogue. They are orthodox in practice, attend synagogue every week, abide by the Halakah, and have brought up their children in a strictly Jewish religious environment. In a witness statement dated 21 February 2008 Mrs L describes her feelings:
"we have been fighting for justice for our family for many years now and to not be able to pursue justice is almost unbearable. The actions of the Beth Din in not accepting my Jewish status, causes me immense hurt, distress and torment on a daily basis, both to me as a practising Jew of over 20 years and to me as a mother. The only thing worse than my pain is to see the pain of my daughter."
- I might add that Mrs L has been teaching at JFS since 1991. She is now head of department in her subject.
- Mr L in a witness statement also dated 21 February 2008 added this:
"It has been particularly difficult for my wife teaching at JFS although she has had a great deal of support from the staff and parents, for which she we are grateful.
My daughter
leads an active Jewish life and asks why she can't go to the school of her choice, where her mother teaches and where I and my sisters were pupils. I find this hard to explain to her, other than saying that there are small-minded people stopping it from happening.
I am desperately sorry that we are unable to take our own proceedings but we are a family of average means against a large, well-financed establishment.
I cannot begin to express the pain and suffering that our whole family feels as a consequence of the actions of the London Beth Din. It has now been with us for many years without it diminishing or dimming. My wife has been incredibly brave in going public about this matter and the distress will only be over when our family is accepted as Jewish by the Beth Din and when [our daughter] is given a place at JFS."
The factual background: the families the S family
- Mrs S (Miss B as she then was) was converted in Israel on 21 June 1990. She married Mr S in Israel on 2 October 1990. Their son was born in this country in January 1994. The Mohel they approached contacted the London Beth Din. There is no formal record of the Beth Din's decision but the papers I have been shown are annotated "BD has not been asked to decide mother's status just to approve the [bris]" and "recognised for bris only."
- In November 2004 Mr and Mrs S applied for their son's admission to JFS. JFS wrote to them on 6 December 2004 enclosing a copy of a letter to the school from the OCR dated 2 December 2004 which said that "the conversion of the mother
is not recognised by the London Beth Din. Accordingly, I cannot confirm his Jewish status." JFS's letter to Mr and Mrs S was in terms virtually identical to its letter to Mr and Mrs L.
- Mr and Mrs S were interviewed by the London Beth Din on 6 January 2005. The notes include the following: "Mr S is a non religious Israeli. Was an officer in the Israeli army
Mr S concedes that they were not religious but is aggrieved that we question the Israeli conversion." The Beth Din's decision was set out in a letter dated 13 January 2005:
"Regrettably, given the details of your conversion with particular regard to the level of commitment and observance to Orthodox Jewish practice at the time of your conversion, the Beth Din is not able to recognise your conversion effected in Israel.
I am sorry to disappoint you
However, the issue is one of Halachik Jewish status and we are simply not able to accept the existing conversion.
At the same time, I would like to offer that should you wish to undertake tuition with the intention of becoming fully observant, we would be in a position to consider regularising your conversion."
The decision was maintained in a further letter from the Beth Din dated 14 March 2005.
- Mr and Mrs S appealed to JFS's Admissions Appeals Panel. Its decision, in a letter dated 19 May 2005, was that JFS was to offer their son a place "if the Office of the Chief Rabbi in London decides that [he] is regarded by them as halachically Jewish."
- On 21 June 2005 there was a meeting at the Beth Din between Mrs S (and her adviser) and the Chief Rabbi, Sir Jonathan Sacks, and three Dayanim of the Beth Din. The findings of the Beth Din are recorded in a formal document and set out, in materially indistinguishable terms, in a letter from the OCR to Mr and Mrs S dated 5 July 2005. I quote the most important parts:
"The crucial question before the Chief Rabbi and the Beth Din was whether or not they should recognise the validity of your conversion to Judaism which took place in Israel in June 1990.
In order to do so, they sought to establish your level of commitment to Orthodox Jewish practice at the time of your conversion as evidenced and demonstrated by your practice before immediately prior to and immediately after the conversion and by reference to all the surrounding circumstances of the conversion.
You were unable to describe any active involvement in Jewish life, on your return to England and within 3½ months of the conversion you married an Israeli who describes himself as a "secular Jew" who did not even attend Synagogue on Yom Kippur, after he had moved with you to a Jewish area. It was also apparent that your knowledge of Jewish religious practice was minimal in the extreme.
On the basis of your own account of the conversion process the Chief Rabbi and Beth Din determined there were serious flaws in the conversion, as you were unable to provide us with evidence that, whether at the time of your conversion or subsequently, you maintained even the most basic observance of Jewish law, essential to the validity of a conversion.
The Chief Rabbi and the Beth Din have decided, that they have no grounds to overturn the previous finding of the Beth Din, as reflected in [the] letter of 13th January 2005 and are unable to recognise your conversion."
- Also in July 2005, Mr and Mrs S's third son was born. The Chief Rabbi refused their request to provide an Orthodox Mohel to circumcise him. (Their second son had been circumcised in Israel where they were then living.)
- According to a statement by Mrs S dated 31 October 2007:
"We decided not to take the matter further
I still feel that it is ridiculous that I and my children are recognised as Jewish by the Orthodox authorities in Israel (who have confirmed that my conversion is valid) but not in England and feel very sad that my sons are not able to have the benefit of a Jewish education."
- In his witness statement dated 26 February 2008 Dayan Gelley explains that there is a protocol between the London Beth Din and the Israeli Chief Rabbinate that Israeli Orthodox Beth Din will not convert British citizens in Israel unless they have been resident there for at least a year. Mrs S, he says, did not comply with the protocol and was converted in Israel after only a short period of residence. "Therefore", he says, the London Beth Din carried out an investigation into the validity of her conversion.
- In a letter dated 2 June 2005 written to the London Beth Din in relation to the conversion of Mrs S the Chief Rabbi of Israel wrote (I quote from the English translation of the Hebrew original):
"
any Rabbinic Court whether in Israel or outside Israel has the authority to review the validity of a conversion which has been carried out, on the basis of evidence brought before it at the time that the case is being reviewed.
Similarly, there is nothing to prevent any Beth Din within its own jurisdiction evaluating the validity of a conversion which has taken place elsewhere when the conversion is brought into question. The above is consistent with established halachic practice."
The history of the dispute
- E wishes M to be educated at JFS. The dispute which has given rise to the present litigation arises in circumstances where, as E realistically accepts, it would be futile for him to seek the OCR's recognition of M's Jewish status.
- Accordingly, E thought to comply with the second limb of paragraph 1.1 of the admissions policy which, as we have seen, also gives priority to children "who have already enrolled upon or who have undertaken, with the consent of their parents, to follow any course of conversion to Judaism under the approval of the OCR."
- However, on 4 October 2006 E was told by Rabbi Rashi Simon of the OCR that the OCR would recognise only conversions preceded by a course of study, religious instruction and observance which took several years, and that it would only be on completion (or very rarely at the very end) of this process that the OCR would even consider recommending a child for JFS. In these circumstances E decided, so it would seem, not to pursue this route.
The history of the dispute: JFS
- In October 2006 E applied for M to be admitted to JFS for the academic year 2007/08. On 17 November 2006, having been informed of JFS admissions policy, E wrote to JFS objecting to the request for information concerning M's mother's halachic status and saying "Please note that my son is a member of the Jewish faith and a member of our synagogue."
- On 13 April 2007 the Headteacher of JFS wrote to E informing him that "we are not able to offer [M] a place at JFS" on the ground that:
"because the School has not received evidence of [M]'s Jewish status it would not be possible to consider [M] for a place unless and until all those applicants whose Jewish status has been confirmed have been offered places. It follows from this that, as the School is likely to remain heavily oversubscribed, [M]'s position on the offer list will almost certainly be very low and the likelihood of being able to offer a place is very small."
The history of the dispute: the Appeals Panel
- On 15 April 2007 E notified JFS's Admissions Appeal Panel that he wished to appeal. On 10 May 2007 he gave formal notice of appeal. On 4 June 2007 he sent revised grounds of appeal and on 5 June 2007 further grounds of appeal. On 19 May 2007 the Appeal Panel had written to E telling him that he would be sent a statement from the Governing Body giving their reasons for not offering a place "in the next few days." In fact E was not shown the Governing Body's statement until the hearing of his appeal on 5 June 2007 had commenced.
- In their final form, E's grounds of appeal were in substance three-fold:
i) First, that JFS was in breach of the 1976 Act by discriminating against M on racial grounds.
ii) Second, that JFS had breached the School Admissions Code of Practice 2003 (see below) by determining M's admission by reference to questions about his background which did not relate to faith.
iii) Third, that JFS had breached its admissions policy by indicating that a child could be admitted who had undertaken to embark or embarked upon an approved conversion course, when this was not in fact possible.
- The hearing of the appeal took place, as I have said, on 5 June 2007.
- By a letter dated 11 June 2007 the Appeal Panel dismissed E's appeal, stating that:
"as the grounds for your appeal appeared to be based on a challenge to the Admission criteria of JFS
it was outside the remit of this Appeal Panel to deal with this, where the Panel took the view that there was no evident unlawfulness in the criteria in question, and that therefore you must take this issue through other channels."
- On 17 August 2007 E sent a pre-action letter to both the Governing Body and the Appeal Panel. The Governing Body replied by letter dated 28 August 2007. There was no reply from the Appeal Panel. Part of the pre-action letter dated 17 August 2007 was in the form of a questionnaire pursuant to section 65(2) of the 1976 Act. The response by the Governing Body to the questionnaire was dated 17 December 2007.
- The application for judicial review challenging JFS's decision of 13 April 2007 and the Appeal Panel's decision of 11 June 2007 was issued on 10 September 2007.
- I should add at this point that in September 2007 M began his secondary education at another school.
The history of the dispute: the Schools Adjudicator
- On 2 July 2007 E had made an objection to the Schools Adjudicator concerning JFS's admissions policy for the year 2007/08.
- On 5 November 2007 the Schools Adjudicator held a hearing at which E's legal representatives, the London Borough of Brent and Mr and Mrs L made submissions. JFS did not attend and was not represented. On 16 November 2007 the Schools Adjudicator circulated a draft decision to which E responded on 23 November 2007. On 27 November 2007 the Schools Adjudicator issued his final decision.
- E's challenge before the Schools Adjudicator had been to both JFS's admissions policy undersubscription criteria with which I am not concerned and to the oversubscription criteria which are the focus of the litigation. The Schools Adjudicator upheld E's complaint in part in relation to the undersubscription criteria (on the basis that it discriminated indirectly on racial grounds) but dismissed E's complaint in relation to the oversubscription criteria together with the complaints from the London Borough of Brent and Mr and Mrs L.
- The Schools Adjudicator being by then functus officio, E's legal advisers took the view that there was no purpose in engaging in pre-action correspondence. The application for judicial review challenging the Schools Adjudicator's decision of 27 November 2007 was issued on 21 December 2007.
The proceedings
- I have before me, therefore, two separate applications for judicial review, both brought by E.
The proceedings: the first application for judicial review
- The first application (CO/7896/2007) was issued on 10 September 2007 and challenges three decisions: (1) the decision of the Governing Body of JFS on 13 April 2007 refusing to offer a place at JFS to E's son M ("the Refusal"), (2) the decision of the Appeal Panel on 11 June 2007 dismissing E's appeal against that decision ("the Appeal Decision"), and (3) what is described as "the continuing failure or refusal of the Defendants to discharge their duties under section 71 of the Race Relations Act 1976 as amended."
- In summary the grounds of complaint are threefold:
i) First, it is said that JFS's admissions policy is unlawful in that:
a) it does not reflect JFS's designated religious character;
b) it discriminates directly and/or indirectly on racial grounds against children who are not of Jewish ethnic origin / descent through the maternal line; and
c) it unlawfully fetters the Governing Body's discretion and/or sub-delegates to the OCR decisions on the admission of pupils to JFS.
Accordingly, it is said that the Governing Body acted unlawfully in applying the admissions policy to M and refusing to admit him to JFS.
ii) Secondly, it is said that the Appeal Panel acted unlawfully and unfairly in dismissing E's appeal in that:
a) it wrongly concluded that it had no jurisdiction to consider or determine his grounds of appeal and wrongly treated itself as bound by the admissions policy; and
b) unfairly gave him no advance notice of the 'case against' M's admission (which was set out in a detailed document submitted by the Governing Body well in advance of the hearing) and unfairly gave him an inadequate opportunity to present an appeal on the 'social and medical' grounds it indicated it was prepared to consider.
iii) Thirdly, it is said that both the Governing Body and the Appeal Panel have failed and are continuing to fail to discharge their duties under section 71.
- The relief sought is:
i) A declaration that JFS's admissions policy for 2007/08 is unlawful in that:
a) it does not reflect JFS's designated religious character;
b) it discriminates directly or indirectly on racial grounds against children who are not of ethnic Jewish descent through the maternal line;
c) it fails to take into account the requirements of the School Admissions Code of Practice 2003.
ii) A declaration that the Governing Body discriminated unlawfully against M on racial grounds in refusing to admit him to JFS, contrary to sections 1, 17 and 19B of the 1976 Act.
iii) Orders to quash the Refusal and the Appeal Decision, and to require the Governing Body to reconsider the admission of M to JFS.
- The Secretary of State for Children, Families and Schools, the London Borough of Brent and the Schools Adjudicator were served as Interested Parties. The Secretary of State and the Schools Adjudicator have played an active part in the proceedings. The London Borough of Brent has chosen not to. It has not filed an acknowledgement of service and wrote to the court on 12 February 2008 indicating that it was content to let the matter be argued by the other parties and awaited the decision of the court.
The proceedings: the second application for judicial review
- The second application (CO/11587/2007) was issued on 21 December 2007 and challenges the decision of the Schools Adjudicator on 27 November 2007 determining E's objection.
- In summary the ground of complaint is that in dismissing his objection to the admissions policy the Schools Adjudicator erred in law and in fact; he ought to have held that the admissions policy is unlawful in that:
i) it does not reflect JFS's designated religious character;
ii) it discriminates directly or indirectly on racial grounds against children who are not of ethnic Jewish descent through the maternal line;
iii) it unlawfully fetters the Governing Body's discretion and/or sub-delegates to the OCR decisions on the admission of pupils to JFS;
iv) it is contrary to the School Admissions Code 2007; and
v) it includes provision for the admission of children who have enrolled upon a course of conversion to Judaism under the approval of the OCR (it is said that this provision in unfair and misleading because the OCR has stated that it would not in fact approve any such child until the course was complete or virtually compete a process taking many years with which, for all practical purposes, a child cannot comply).
- The relief sought is:
i) A quashing order to quash the Schools Adjudicator's decision.
ii) A declaration that JFS's admissions policy for 2008/09 is unlawful.
- The Governing Body of JFS, the London Borough of Brent and Mr and Mrs L were served as Interested Parties. The Governing Body, which is, of course, a defendant to the first application, has played an active part in the proceedings. The London Borough of Brent, as we have seen, has chosen not to. Mr and Mrs L filed an acknowledgement of service indicating that they did not intend to contest the claim; indeed, their acknowledgement of service stated that they "strongly support" the application. Mr and Mrs L, as we have seen, filed witness statements dated 21 February 2008.
- Permission was granted in both matters by Owen J on 25 January 2008.
- On 4 February 2008 the British Humanist Association (BHA) issued an application seeking permission in CO/11587/2007 to make representations in writing and orally at the hearing. On 14 February 2008 Mr Michael Supperstone QC (sitting as a Deputy Judge of the High Court) gave the BHA permission to make written submissions. He refused to give the BHA permission to make oral submissions at the hearing but gave it liberty to apply to the Judge at the hearing on notice for permission to make oral submissions.
- On 27 February 2008 The United Synagogue issued an application seeking permission in both matters to file evidence and make representations. The application, which was opposed by E, came before me as a table application on 29 February 2008. I adjourned it for hearing before me on 4 March 2008, observing that, given the objections of E, I was not prepared to make an order without (brief) oral submission and that I should want a proper explanation as to why the application had been made so late.
The hearing
- The hearing began before me on 4 March 2008. It lasted four full days. On 7 March 2008 I reserved judgment but (see Appendix B below) giving the parties permission to file written submissions on a point which had first arisen during the afternoon of the fourth and final day. Those submissions were filed on various dates between 27 March 2008 and 8 April 2008.
- E was represented by Ms Dinah Rose QC and Ms Helen Mountfield, the Governing Body of JFS and the Appeal Panel by Mr Peter Oldham, the Secretary of State by Mr Rabinder Singh QC and Mr Dan Squires, The United Synagogue by Mr Ben Jaffey and the BHA by Mr David Wolfe. Mr Clive Lewis QC had filed written submissions on behalf of the Schools Adjudicator but understandably and appropriately in the circumstances had not been instructed to attend.
- Mr L was present in person but made no submissions. The other Interested Parties did not attend and were not represented.
- At the beginning of the hearing on 4 March 2008 Mr Wolfe on behalf of the BHA applied for permission to make oral submissions, which I granted. Also at the beginning of the hearing Mr Jaffey renewed his client's application which, despite the absence of any satisfactory reasons for the delay, I nonetheless granted.
The hearing: the views of M's mother
- M's mother is not a party to the proceedings, though she was in court throughout the hearing. It appears from documents she handed in to me that she and M's father are separated and that there have been proceedings between them in relation to M in the Family Division.
- Her attitude to these proceedings was made clear in a letter to the Treasury Solicitor dated 29 October 2007. She said "I am satisfied that my son
does not fulfil JFS eligibility criteria for admission", going on to observe that:
"The High Court is not the place to discuss Jewish law."
She points out that E has obtained a place for M at another school and says that she has given her consent to M attending that other school, where he is "settled." She says "This judicial review process is an unnecessary investment of everybody's time, money and resources." In documents which she handed in to me during the course of the hearing she made a variety of complaints about E and various others.
- I am in no position to make any comment on the matters raised by M's mother. They are not before me. I am not concerned in the present proceedings with the question of where, in his best interests, M should go to school, just as I am not concerned with the substance or otherwise of the mother's complaints about E. None of those matters is legally relevant to anything I have to decide. If they require a judicial resolution (and I am not to be taken as suggesting they do) then that is a matter for the Family Division, exercising its statutory or inherent welfare jurisdiction, not the Administrative Court exercising its public law jurisdiction.
The wider context
- The specific issues I have to decide arise within a wider context which some of the protagonists have been anxious to elaborate. It is, I agree, important to have regard to the wider context though recognising, as I emphasise, that it cannot in the final analysis determine the outcome.
The wider context: the views of JFS and the United Synagogue
- Mr Oldham submits that the effect of E's claim, if successful, will be to destroy the right of Orthodox Jews to have access to schools which give admission priority to Orthodox Jews and the right of the State to provide such schools. Seemingly, E accepts that members of other religions have that right, so why not Orthodox Jews? The reason, says Mr Oldham, is that E's case is, whether he realises it or not, built upon a central misconception, namely that religion, on his view, is confined to those who believe in a deity or are observant, whereas Orthodox Judaism, which as Mr Oldham correctly submits is plainly a religion, happens to be characterised by the belief, not that observance is a necessary part of membership, but that membership is defined by a status acquired either by conversion or automatically through the matrilineal line that cannot be lost. Hence, as Mr Oldham points out, Orthodox Judaism on E's argument is denied the same rights under education law as are enjoyed, for example, by Christianity and Islam.
- Unsurprisingly, as Mr Oldham observes, Orthodox Judaism (which, needless to say, is of the very greatest antiquity and respectability it is, after all, the oldest of the three 'religions of the book') is recognised as a religion by the European Court of Human Rights: Cha'are Shalom Ve Tsedek v France (2000) 9 BHRC 27 at para [80]. It follows, says Mr Oldham, that, whether he realises it or not, E is requiring the State to cross a line which the Strasbourg court has said it must never cross, for, as the court observed in Moscow Branch of the Salvation Army v Russia (2006) 44 EHRR 912 at para [58] (see further below):
"The State's duty of neutrality and impartiality, as defined in the Court's case law, is incompatible with any power on the State's part to assess the legitimacy of religious beliefs."
So, says Mr Oldham, far from E's claim being well founded, Orthodox Jews would have a claim under the Convention (Article 14 read in conjunction with Article 2 of Protocol 1) if there were to be a ban on schools giving priority, if oversubscribed, to Orthodox Jews but no such ban on schools giving such priority to children of other religions.
- And very significant, he submits, is the care with which paragraph 2.41 of the School Admissions Code (see below) refers to the permissibility of using what it calls "faith-based oversubscription criteria" in order to give priority to children who are "members of, or who practise, their faith or denomination" (emphasis added). The same dichotomy between "membership or practice" appears in paragraph 2.43. In other words, he says, the Code (correctly) recognises that "faith" can be a matter of "membership" rather than necessarily practice or observance.
- Not surprisingly, Mr Jaffey on behalf of the United Synagogue makes much the same points as Mr Oldham. He submits that Judaism is no less worthy of equal treatment, respect and protection as any other established faith merely because the identification of Jewish religious status is different from the notion of belonging to a religion such as Christianity or Islam. He says that it would be ironic, if E is correct, that what he contends for should be the consequence of discrimination legislation that was designed, amongst other things, to protect Jews from discrimination. Such an outcome, he says, would be extraordinary. And, as he points out, since, as I have said, all branches of Judaism accept the principles of conversion or descent as the means of acquiring Jewish status, the effect of E's arguments, if correct, would not be confined to the Orthodox Jewish faith; admissions criteria based on being Jewish as defined by Masorti, Reform or Liberal Jews would be equally unlawful. Indeed, he asks rhetorically, what does E say JFS's admissions criteria should be? as he says, E's position on this remains opaque.
- Mr Jaffey makes the same point based on the Convention as Mr Oldham. Having decided to permit faith schools, and having allowed such schools to select on the basis of membership of a religion, Jewish faith schools must, unless there is to be breach of Article 14 (read in conjunction with Article 9), be treated fairly alongside faith schools founded by other established faiths.
- Understandably, Mr Jaffey's clients are concerned that the skeleton argument filed on behalf of E is characterised by what Mr Jaffey calls a persistent attempt to portray the Orthodox Jewish faith as unreasonable or unfair. As he points out, the London Beth Din is accused of acting "in dubious circumstances of fairness" and of wrongly declaring conversions "retrospectively invalid", allegations which he submits as it seems to me with some justification are unjustified.
- I have seen nothing to suggest unfairness. As Mr Jaffey submits, and as the evidence demonstrates, the London Beth Din recognises all bona fide Orthodox conversions but, where there are grounds for concern, will investigate the circumstances of the conversion, as Jewish law requires. Given that the fundamental question, as a matter of Jewish law, is whether at the moment of conversion the convert accepted the tenets of the Orthodox Jewish faith in their entirety, any such investigation will of its very nature involve delicate and probing questions. And in that there is, I might observe, nothing unique to Orthodox Judaism. Similarly delicate and probing questions may have to be asked, for example, by the legal authorities of the Roman Catholic church when considering an application in accordance with religious law for the annulment of an outwardly lawful marriage.
The wider context: other views in the Jewish community
- It is apparent from the evidence that some sections of the Jewish community are concerned about JFS's policy.
- Rabbi Rich expresses the view of Liberal Judaism that JFS's admissions policy is "politically motivated, unfair, and discriminatory
favouring one section of the Jewish community over another." He says that it is the view of Liberal Judaism that "a state funded Jewish school should admit Jewish children regardless of synagogue affiliation or which mainstream, responsible Jewish organisation considers the child as such, and should operate an equitable admission policy which does not discriminate against a child because of the exclusive definitions of one section of the Jewish community represented in Britain." Rabbi Bayfield speaking for Reform Judaism regards JFS's admissions policy as "excessively narrow and restrictive".
- But it is equally clear from the evidence that different sections of the British Jewish community, regardless of their views as to the appropriateness of JFS's policy, are deeply troubled about this litigation. Unease about the implications of the litigation is expressed by both the Orthodox and Reform witnesses. Mr Frei says that the United Synagogue and the Chief Rabbi would be "greatly concerned" by any suggestion that Orthodox Jewish schools should not be permitted to select their pupils on the basis of the test for Jewish status under Orthodox Jewish religious law. Rabbi Bayfield, who as we have seen regards the School's admissions policy as "excessively narrow and restrictive", nonetheless continues:
"But that is an internal matter for the Jewish community. We would not want the law of the land to question the right of the OCR to define Jewish identity the way that it does. We do not think it is wise or right for the State to get involved. In any event, this has nothing to do with race or racism."
He adds:
"What would be absolutely ridiculous and unacceptable would be to require synagogue attendance or a defined level of religious practice
We would be equally outraged" that is, equally with Orthodox Judaism "if a 'Christian' model of 'Church' membership and attendance were imposed. We would advise very strongly against government or legal intervention in the admissions criteria at JFS even though our view of the needs of the Jewish world and our outlook on the best strategy to maintain and develop Jewish life is very different. In our view, the OCR policy with regard to admission to JFS is strategically wrong, 'politically' motivated, not in the interests either of the community or the family concerned and unjust. But we would not want the courts or the government to intervene or adjudicate, certainly not on grounds of racial discrimination."
The wider context: the view of the Secretary of State
- The Secretary of State participates in these proceedings to assist the court and to draw attention to what he suggests are the wider implications of the claims based on alleged racial discrimination. He points out, supplying detailed material which there is no need for me to rehearse, that the majority of maintained "Jewish" schools 27 out of the 36 for which the information is available have admission arrangements which are, so far as material, the same as JFS and all of which, on E's approach, are unlawful.
- The Secretary of State submits through Mr Singh that a finding of direct discrimination in this case would make it unlawful for any school to give preference in its admission criteria to Jewish children for there are, he says, no alternative admission arrangements, consistent with any Jewish definition of who is a Jew, that could lawfully be adopted by Jewish schools if JFS's admissions policy is directly discriminatory. His argument is essentially the same as the arguments put forward by Mr Oldham and Mr Jaffey. E's suggestion that problems of direct discrimination could be avoided by using "faith-based" entry criteria will not work, for being "Jewish" or being a "member of the Jewish faith" or "being of Jewish faith" means only, he submits, that a person is "Jewish" by descent or conversion. In the light of the evidence, it is not clear, says Mr Singh, what "faith-based" means for Jews, as distinct from being Jewish as a matter of Jewish religious law for, as he points out, if what E means is that a child should be admitted because he has a particular set of beliefs, practices or a creed, but who is not Jewish by descent or conversion, then such a child is simply not Jewish as defined by any mainstream Jewish body. And it follows from this, Mr Singh submits, that what goes for Orthodox Judaism must apply to all forms of Judaism. As he says, the differences between the processes of conversion do not change the analysis so far as the 1976 Act is concerned.
- So far as concerns the claim for indirect discrimination, the Secretary of State is concerned that if successful it would, given the way in which the case has been put, have implications for a wide range of faiths that use "membership" of a religion but not its practice in their admission criteria.
The legal context
- Before turning to the particular arguments that have been addressed to me I must first refer to the relevant legal context.
The legal context: the role of the court
- I have already touched on the role of the court when confronted with religious disputes. I should add this.
- I sit as a secular judge. Religion whatever the particular believer's faith is no doubt something to be encouraged but it is not the business of government or of the secular courts, though the courts will, of course, pay every respect to religious belief. Article 9 of the Convention, after all, demands no less. The starting point of the common law is a tolerant indulgence to cultural and religious diversity and an essentially agnostic view of religious beliefs. A secular judge must be wary of straying across the well-recognised divide between church and state. It is not for a judge to weigh one religion against another. The court recognises no religious distinctions and generally speaking passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society. All are entitled to equal respect. And the civil courts must be slow to interfere in the life of any religious minority or to become involved in adjudicating on purely religious issues. So, in my judgment, I must not allow myself to become embroiled in the private religious issues of the Jewish (or indeed of any other) religious community. As I have already said, the court is not concerned to adjudicate on religious controversies within a religious community or between different religious communities.
- However, it is important to realise that reliance upon religious belief, however conscientious the belief and however ancient and respectable the religion, can never of itself immunise the believer from the reach of the secular law. And invocation of religious belief does not necessarily provide a defence to what is otherwise a valid claim. Some cultural beliefs and practices are simply treated by the law as being beyond the pale. Some manifestations of religious practice will be regulated if contrary to a child's welfare. And even some aspects of mainstream religious belief may fall foul of public policy: a recent striking example is Westminster City Council v IC [2008] EWCA Civ 198 where the Court of Appeal held on grounds of public policy that a 'marriage' valid under both Sharia law and the lex loci celebrationis despite the manifest incapacity of one of the parties was not entitled to recognition in English law.
The legal context: the European Convention
- The same approach is enshrined in the Convention. I start with Article 9:
"1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2 Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."
- I note in passing that the protection of Article 9 is qualified in two ways. In the first place, as Mr Oldham points out, the Convention protects only religions and philosophies which are "worthy of respect in a "democratic society" and are not incompatible with human dignity": see Campbell and Cosans v United Kingdom (1982) 4 EHRR 293 at para [36]. Secondly, whilst religious belief and thought are (subject to that overriding qualification) given absolute protection by Article 9(1), the "manifestation" of one's religion in "worship, teaching, practice and observance" is subject to the qualifications referred to in Article 9(2). But what it is vital to appreciate in the present context is that the Convention forbids the State to determine the validity of religious beliefs and in that respect imposes on the State a duty of what the Strasbourg court has called neutrality and impartiality.
- In Moscow Branch of the Salvation Army v Russia (2006) 44 EHRR 912 the Strasbourg court stressed both the importance of the rights protected by Article 9 and the limits to the State's right to interfere. At para [57] it said (citations omitted):
"The Court refers to its settled case law to the effect that, as enshrined in Art. 9, freedom of thought, conscience and religion is one of the foundations of a "democratic society" within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it."
The court explained its view of pluralism at para [61]:
"pluralism is also built on the genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs, artistic, literary and socio-economic ideas and concepts. The harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion."
- At para [58] the court explained the importance of religious communities:
"While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to "manifest [one's] religion" alone and in private or in community with others, in public and within the circle of those whose faith one shares. Since religious communities traditionally exist in the form of organised structures, Art. 9 must be interpreted in the light of Art. 11 of the Convention, which safeguards associative life against unjustified state interference. Seen in that perspective, the right of believers to freedom of religion, which includes the right to manifest one's religion in community with others, encompasses the expectation that believers will be allowed to associate freely, without arbitrary state intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Art. 9 affords."
It returned to the same point in para [71]:
"Where the organisation of the religious community is at issue, a refusal to recognise it
constitutes interference with the applicants' right to freedom of religion under art 9 of the Convention. The believers' right to freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary State intervention."
- Underpinning all this is the fundamental point which the court made in para [58]:
"The State's duty of neutrality and impartiality, as defined in the Court's case law, is incompatible with any power on the state's part to assess the legitimacy of religious beliefs."
It returned to the point in para [92]:
"The Court points out that, according to its constant case law, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate."
- It is also necessary to refer to Article 2 of the First Protocol:
"No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."
Note that the word used here is "convictions" contrast the words "manifest
in worship, teaching, practice and observance" in Article 9(2). As to this it is important to see what the court said in Campbell and Cosans v United Kingdom (1982) 4 EHRR 293 at para [36] (citations omitted):
"the expression "philosophical convictions" in the present context denotes, in the Court's opinion, such convictions as are worthy of respect in a "democratic society" and are not incompatible with human dignity; in addition, they must not conflict with the fundamental right of the child to education, the whole of Article 2 being dominated by its first sentence."
- Finally, I refer to Article 14:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
The issues
- As Ms Rose observes, the arguments in the two applications for judicial review overlap. She suggests, and I agree, that it is convenient to deal with them under the following headings:
i) Objections to the admissions policy:
a) direct race discrimination;
b) indirect race discrimination;
c) breach of section 71;
d) failure to reflect JFS's designated religious character;
e) sub-delegation to the OCR / fettering of discretion;
f) breach of the School Admissions Code;
g) admission criteria unclear and unfair in relation to conversion.
ii) Objections to the Appeal Panel's conduct:
a) misdirection as to jurisdiction;
b) procedural unfairness.
The legal framework
- Before turning to address the issues Ms Rose has identified it will be convenient to set out some, though not at this stage all, of the relevant legal framework within which these applications fall to be considered. At this stage I propose to deal with the legal framework in relation to:
i) voluntary aided schools;
ii) racial discrimination.
The legal framework: voluntary aided schools
- I can deal with this quite briefly because it is uncontroversial and the detail does not matter for present purposes.
- The functioning of publicly-funded schools is regulated by the Schools Standards and Framework Act 1998. JFS is a voluntary aided school, which is a category of maintained school within the meaning of section 20 of the 1998 Act.
- By section 21(4) of the Education Act 2002 the governing body is bound to comply with the school's instrument of government when exercising its functions.
- By section 69(3) of the 1998 Act a voluntary aided school has a religious character if is designated as such by an order made by the Secretary of State. Section 69(4) requires such an order to state in relation to the school the religion or religious denomination in accordance with whose tenets religious education is, or may be, required to be provided at the school. The Religious Character of Schools (Designation Procedure) Regulations 1998, SI 1998/2535, require the Secretary of State to designate the religion or religious denomination he considers relevant following consultation with the school's governing body. Under the Designation of Schools Having a Religious Character (England) Order 1999, SI 1999/2432, the Secretary of State has designated JFS as having a "Jewish" religious character.
- By section 88(1)(b) of the 1998 Act the governing body is the admission authority for a voluntary aided school. Section 89(1) requires the governing body before the beginning of each year to determine the admission arrangements for that year. Section 84 (as amended by the Education and Inspections Act 2006) requires the governing body to act in accordance with the School Admissions Code. (Prior to the 2006 Act the only requirement was to take the Code into account.) For the year 2008/09 the School Admissions Code is that published in February 2007; the previous Code was dated 2003. Section 86 requires the governing body to comply with a parent's expressed preference as to school save where compliance with the preference would prejudice the provision of efficient education or the efficient use of resources.
- Section 94 of the 1998 Act provides for and regulates parental appeals against any decision of the governing body refusing the child admission to the school. The appeal is to an appeal panel, whose jurisdiction is set out in and whose procedures are regulated by the Education (Admissions Appeals Arrangements) (England) Regulations 2002, SI 2002/2899.
- Section 90(2) of the 1998 Act provides that a parent may object, to an adjudicator appointed under section 25, that a school's admission arrangements do not comply with the School Admissions Code. Section 90(3) requires the adjudicator to decide whether, and if so to what extent, the objection should be upheld.
The legal framework: racial discrimination
- Far and away the most important of the matters canvassed before me is E's complaint that JFS has been guilty of racial discrimination contrary to the Race Relations Act 1976. It is to this that I now turn.
The legal framework: racial discrimination the statutory provisions
- The relevant provisions of the 1976 Act are to be found in sections 1, 3, 17, 19B, 20, 35, 57 and 71.
- The primary provisions are in sections 1 and 3. Section 1 provides so far as material that:
"(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons
(1A) A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (1B), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but
(a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons,
(b) which puts that other at that disadvantage, and
(c) which he cannot show to be a proportionate means of achieving a legitimate aim.
(1B) The provisions mentioned in subsection (1A) are
(b) section
17
;
(c) section 19B
"
It is common ground that racial discrimination may include treating a person less favourably because of the ethnic origins of a third party: see Zarczynska v Levy [1978] IRLR 532.
- Section 3 provides so far as material that:
"(1) In this Act, unless the context otherwise requires
"racial grounds" means any of the following grounds, namely colour, race, nationality or ethnic or national origins;
"racial group" means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls.
(2) The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group for the purposes of this Act.
(4) A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) or (1A) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
- Part III of the Act deals with discrimination in a number of particular fields. Section 17 provides so far as material:
"(1) It is unlawful, in relation to an educational establishment falling within column 1 of the following table, for a person indicated in relation to the establishment in column 2 (the "responsible body") to discriminate against a person
(a) in the terms on which it offers to admit him to the establishment as a pupil; or
(b) by refusing or deliberately omitting to accept an application for his admission to the establishment as a pupil
"
It is common ground that the Governing Body is the responsible body. Section 19B(1) provides that:
"It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination."
Section 20 provides so far as material as follows:
"(1) It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services
(a) by refusing or deliberately omitting to provide him with any of them; or
(b) by refusing or deliberately omitting to provide him with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in the first-mentioned person's case in relation to other members of the public or (where the person so seeking belongs to a section of the public) to other members of that section.
(2) The following are examples of the facilities and services mentioned in subsection (1)
(d) facilities for education;
(g) the services of any profession or trade, or any local or other public authority."
- Part III of the Act is subject to the general exception in section 35:
"Nothing in Parts II to IV shall render unlawful any act done in affording persons of a particular racial group access to facilities or services to meet the special needs of persons of that group in regard to their education, training or welfare, or any ancillary benefits."
- Sections 53 and 57 of the Act regulate the bringing of claims under Part III. So far as material section 53 provides as follows:
"(1) Except as provided by this Act
no proceedings, whether civil or criminal, shall lie against any person in respect of an act by reason that the act is unlawful by virtue of a provision of this Act.
(2) Subsection (1) does not preclude the making of an order of certiorari, mandamus or prohibition."
So far as material section 57 provides as follows:
"(1) A claim by any person ("the claimant") that another person ("the respondent")
(a) has committed an act ... against the claimant which is unlawful by virtue of Part III
may be made the subject of civil proceedings in like manner as any other claim in tort
(2) Proceedings under subsection (1)
(a) shall, in England and Wales, be brought only in a designated county court
but all such remedies shall be obtainable in such proceedings as, apart from this subsection and section 53(1), would be obtainable in the High Court
"
- Section 71(1) of the Act provides as follows:
"Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need
(a) to eliminate unlawful racial discrimination; and
(b) to promote equality of opportunity and good relations between persons of different racial groups."
It is common ground that the Governing Body is subject to this obligation.
- I need to refer at this point to the Equality Act 2006.
- Part 2 of the Equality Act 2006 prohibits discrimination on grounds of religion or belief. The relevant provisions are to be found in sections 44, 45, 49 and 50.
- Section 44 provides that:
"In this Part
(a) "religion" means any religion,
(b) "belief" means any religious or philosophical belief,
(c) a reference to religion includes a reference to lack of religion, and
(d) a reference to belief includes a reference to lack of belief."
Section 45 so far as material provides as follows:
"(1) A person ("A") discriminates against another ("B") for the purposes of this Part if on grounds of the religion or belief of B or of any other person except A (whether or not it is also A's religion or belief) A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances).
(2) In subsection (1) a reference to a person's religion or belief includes a reference to a religion or belief to which he is thought to belong or subscribe."
- Section 49(1) provides so far as material that:
"It is unlawful for the responsible body of an educational establishment listed in the Table to discriminate against a person
(a) in the terms on which it offers to admit him as a pupil,
(b) by refusing to accept an application to admit him as a pupil
"
Section 50(1) provides however, so far as material, that:
"Section 49(1)(a), (b) and
shall not apply in relation to
(a) a school designated under section 69(3) of the School Standards and Framework Act 1998 (c. 31) (foundation or voluntary school with religious character)
"
It is common ground that JFS is such a school.
- The limited effect of section 50 requires to be understood. All that it does is to immunise a school such as JFS from liability for religious discrimination under the Equality Act 2006; it does not immunise such a school from any liability for racial discrimination it may have under the Race Relations Act 1976. In other words, while religious belief may be an answer to a claim based on alleged religious discrimination contrary to the 2006 Act, precisely the same religious belief will not necessarily be an answer to a claim on the same facts based on alleged racial discrimination contrary to the 1976 Act. That, of course, is why the claim in the present case is based on the 1976 Act and not the 2006 Act. But it is also the reason why, with all respect to one of Mr Oldham's arguments, the fact that his clients' religious beliefs would afford them a defence under section 50 of the 2006 Act is, at the end of the day, neither here nor there.
The legal framework: racial discrimination the European dimension
- It is necessary to construe the 1976 Act against the background of Council Directive 2000/43/EC. Indeed, as Ms Rose points out, sections 1(1A) and 19B of the 1976 Act were inserted in order to give effect to the Directive.
- Preamble (2) to the Directive refers to the European Convention for the protection of Human Rights and Fundamental Freedoms and preamble (3) to various other international Conventions including the International Convention on the Elimination of all forms of Racial Discrimination (CERD).
- Article 1(1) of CERD provides that:
"In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life." (emphasis added)
Article 2(1) provides so far as material that:
"States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:
(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;
(b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations;
(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;
(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;
"
Article 5 so far as material provides that:
"In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
(e) Economic, social and cultural rights, in particular:
(v) The right to education and training;
"
- Referring to what was said in the House of Lords in R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2004] UKHL 55, [2005] 1 AC 1, at paras [44], [46], and in A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68, at paras [61]-[63], Ms Rose submits that even if CERD is not legally binding as a matter of domestic law, it is an important interpretative tool in identifying the scope of national discrimination law. Accordingly, she submits, the 1976 Act as amended to give effect to the Directive must be interpreted to give effect to the United Kingdom's obligations under provisions of international law which, as Lord Steyn pointed in the Roma case at para [46], are obligations erga omnes, binding as jus cogens on all states.
- I agree with Ms Rose as to the significance of CERD, though it does not, as we will see, provide her with the support in this particular case which she seeks to draw from it. The word "descent" in Article 1(1) upon which she places particular stress will not, in my judgment, bear the weight she seeks to place upon it.
The law what is "ethnic origin"?
- E's case is that there was here discrimination on racial grounds because there was, he says, discrimination (direct or indirect) on the ground of M's ethnic origins. It is on this issue that the central part of E's case stands or falls.
- The classic description of what is an ethnic group is to be found in the speech of Lord Fraser of Tullybelton in Mandla (Sewa Singh) v Dowell Lee [1983] 2 AC 548, where the question was whether Sikhs are an ethnic group it was held that they are. At page 561 he said this:
"My Lords, I recognise that "ethnic" conveys a flavour of race but it cannot, in my opinion, have been used in the Act of 1976 in a strictly racial or biological sense. For one thing, it would be absurd to suppose that Parliament can have intended that membership of a particular racial group should depend upon scientific proof that a person possessed the relevant distinctive biological characteristics (assuming that such characteristics exist)."
The key passage follows on pages 562-563:
"In my opinion, the word "ethnic" still retains a racial flavour but it is used nowadays in an extended sense to include other characteristics which may be commonly thought of as being associated with common racial origin.
For a group to constitute an ethnic group in the sense of the Act of 1976, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant; (3) either a common geographical origin, or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups.
A group defined by reference to enough of these characteristics would be capable of including converts, for example, persons who marry into the group, and of excluding apostates. Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he is, for the purposes of the Act, a member. That appears to be consistent with the words at the end of section 3(1): "references to a person's racial group refer to any racial group into which he falls." In my opinion, it is possible for a person to fall into a particular racial group either by birth or by adherence, and it makes no difference, so far as the Act of 1976 is concerned, by which route he finds his way into the group. This view does not involve creating any inconsistency between direct discrimination under paragraph (a) and indirect discrimination under paragraph (b). A person may treat another relatively unfavourably "on racial grounds" because he regards that other as being of a particular race, or belonging to a particular racial group, even if his belief is, from a scientific point of view, completely erroneous.
Finally on this part of the argument, I think it is proper to mention that the word "ethnic" is of Greek origin, being derived from the Greek word "ethnos," the basic meaning of which appears to have been simply "a group" not limited by reference to racial or any other distinguishing characteristics: see Liddell and Scott's Greek-English Lexicon, 8th ed. (Oxford 1897). I do not suggest that the meaning of the English word in a modern statute ought to be governed by the meaning of the Greek word from which it is derived, but the fact that the meaning of the latter was wide avoids one possible limitation on the meaning of the English word.
My Lords, I have attempted so far to explain the reasons why, in my opinion, the word "ethnic" in the Act of 1976 should be construed relatively widely, in what was referred to by Mr. Irvine as a broad, cultural/historic sense. The conclusion at which I have arrived by construction of the Act itself is greatly strengthened by consideration of the decision of the Court of Appeal in New Zealand (Richmond P, Woodhouse and Richardson JJ) in King-Ansell v Police [1979] 2 NZLR 531."
- At page 564 Lord Fraser of Tullybelton quoted two passages from the judgment of Richmond P in that case, the first at page 542:
"The real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins. That must be based on a belief shared by members of the group."
The other was at page 543:
"a group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock. It is that combination which gives them an historically determined social identity in their own eyes and in the eyes of those outside the group. They have a distinct social identity based not simply on group cohesion and solidarity but also on their belief as to their historical antecedents."
- In Mandla at page 561 Lord Fraser of Tullybelton had treated it as obvious that the 1976 Act applied to Jews and indeed his factors (1) and (2) are plainly apposite to embrace Jews. The point came up for direct decision in Seide v Gillette Industries Ltd [1980] IRLR 427, a decision of the Employment Appeal Tribunal.
- In that case the complainant had been the victim of offensive remarks of anti-Semitic nature by a fellow employee. The question was whether, if there was discrimination at all (in fact the Industrial Tribunal had held that there was not), it was discrimination within the ambit of the 1976 Act. At paras [22]-[23] Mr Justice Slynn P said this:
"[22] This decision of the Industrial Tribunal is attacked on a number of grounds. Firstly, a question which had to be considered by the Industrial Tribunal was whether they had jurisdiction to deal with this matter at all. The point was quite rightly raised as to whether what had happened here was on the ground of Mr Seide's religion. If it was, then it appeared to be outside the provisions of the Race Relations Act. On the other hand, if it was on the ground of his race or ethnic origin then it would be within the ambit of the Act. Both sides accept and the Tribunal accepted that 'Jewish' could mean that one was a member of a race or a particular ethnic origin as well as being a member of a particular religious faith. The Tribunal, on that basis, found that what happened here was not because Mr Seide was of the Jewish faith but because he was a member of the Jewish race or of Jewish ethnic origin.
[23] It seems to us that their approach to this question was the right approach, as agreed by the parties, and that they were perfectly entitled to find on the facts of this case that Mr Garcia's remarks were on the basis of Mr Seide's race or ethnic origin."
- That decision is important, as it seems to me, for two quite separate reasons. In the first place, it is clear authority, if indeed authority were required for such an obvious proposition, that Jews are an ethnic group. Secondly, however, there is the clear recognition that anti-Semitic behaviour may be based on the victim's Jewish ethnic origin in which case the 1976 Act applies but may, on the other hand, be based simply on the victim's Jewish religion or faith in which case the 1976 Act does not apply. And whether in any particular case it is one or the other is a matter of fact, to be determined on the facts of the particular case.
- In this sense, a central question in the present case is whether JFS's treatment of M was on racial (ethnic) or simply on religious grounds.
Objections to the admissions policy: direct race discrimination
- Ms Rose, referring to various authorities including James v Eastleigh Borough Council [1990] 2 AC 731, Nagarajan v London Regional Transport [2000] AC 501, Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] ICR 337, at paras [7]-[8], A v Secretary of State for the Home Department [2002] EWCA Civ 1502, [2004] QB 335, [2004] UKHL 56, [2005] 2 AC 68, at paras [53]-[54], and Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557, at paras [16]-[17], reminds me that there are differing ways of analysing the question of whether there has been direct racial discrimination. But, as she rightly says, in the present case, whichever approach one adopts, the "real question" is the same.
- There is no room for doubt or dispute about the relevant policy and how it operates. So there is no room for argument about the "reason why" M was treated as he was: it was because, in the view of the OCR, and therefore of JFS, he is not Jewish, not being of Jewish matrilineal descent. Nor is there any room for argument as to the differential impact of JFS admissions policy as between M and those children who in the view of the OCR, and therefore of JFS, are Jewish: they are admitted to JFS, M was not.
- The only question, therefore, is whether the admitted "reason why" M was refused admission was, as JFS say, lawful or, as E asserts, unlawful as being, within the meaning of section 1(a) of the 1976 Act, "on racial grounds" specifically here on grounds of ethnic origin as those expressions are defined in section 3(1). In other words, is the criterion of being Jewish by virtue of Jewish matrilineal descent one of ethnic origin?
- This question, as Ms Rose correctly asserts, is an objective one, to be answered by reference to the 1976 Act. It is, as she submits, simply immaterial that those who apply the criterion sincerely and in good conscience believe that it is a tenet of their religion. Good motive is no defence: James v Eastleigh Borough Council [1990] 2 AC 731 at page 765, Nagarajan v London Regional Transport [2000] AC 501 at page 511.
- Ms Rose asserts baldly that it is "evident" that ethnic origin is the "reason why" children like M are less favourably treated than applicants recognised by the OCR as being Jewish; M, she says, is being less favourably treated than a child whose mother was born Jewish "because of who he is and where he comes from, and not because of what he believes or practices." He is, she says, being treated in the way he is entirely because of his mother's ethnicity. I do not agree.
- Looking to the United States of America, Ms Rose seeks to draw an analogy with a faith group which recognises "white members only": see Bob Jones University v United States (1983) 461 US 574. (Mr Wolfe draws a similar analogy when referring to the South African Afrikaanse Protestante Kerk, which also allows only white members.) She submits that such a group could not avoid liability under the 1976 Act merely by asserting that its stance was based upon sincere religious belief. I entirely agree, even assuming (what I would not be prepared to accept) that such a group is entitled to be treated as a religion at all; I have in mind, for example, the principle stated by the Strasbourg court that the Convention recognises only religions which "are worthy of respect in a "democratic society" and are not incompatible with human dignity."
- But Ms Rose seeks to take the argument further, for she submits that the situation in the present case is even starker: it is not that JFS recognises only those who are of matrilineal Jewish descent as Jewish; it is that it recognises all those who are of matrilineal Jewish descent as Jewish irrespective of belief or practice and excludes many other who are Jewish by belief and practice on grounds only of descent. So, she suggests, the proper analogy is with a religious group which embraces all white people as its members, whether or not they share its beliefs.
- The short answer to this is provided by Mr Singh. Being white is only and necessarily a matter of race. Being Jewish can be a matter of race, but it can also be purely a matter of religion. Someone can be Jewish as a matter of religion (for example, by conversion) but not racial origin. Someone can be Jewish as a matter of race but, unless they convert in a way recognised by the OCR, not Jewish as a matter of religion. Mr Jaffey makes essentially the same point though, not surprisingly, saying that his clients find the comparison sought to be drawn between the Jewish faith and a white supremacist body offensive, not least because, as he rightly says, the tenets of the Jewish faith are in no respect repugnant to public policy. As he puts it, a person can convert to Judaism and, once converted, is Jewish and, if a woman, will pass her Jewish status to her children. But no-one can change his or her colour.
- However the importance of this part of Ms Rose's argument is that it brings into sharp focus that the central plank in E's case is the assumption the assertion that membership of a religious group based upon descent amounts to membership by reason of ethnic origins. Ms Rose seeks to bolster this argument by pointing to section 3(2) of the 1976 Act. She submits that while Jews as a whole constitute a racial group, they also include sub-groups defined by their different ethnic origins such as Sephardi and Ashkenazi Jews who are likewise, for the purposes of the 1976 Act, ethnic groups. Hence, she submits, there is nothing in principle to prevent a member of one ethnic sub-group of Jews unlawfully discriminating on racial grounds against a member of another ethnic-group of Jews.
- Both strands of the argument are, in my judgment, unsustainable.
- The first the equiperation of descent and ethnic origin involves a simple error of logic as well as an error of law. Because the concept of ethnic origin as explained by Lord Fraser of Tullybelton in Mandla embraces within it, as one of a number of factors, the concept of descent, it does not follow either as a matter of logic or as a matter of law that the concept of descent simpliciter necessarily has anything to do with ethnicity. Depending on the context it may do, but equally it may not. So merely to point to the fact that the rule applied by the OCR, and thus by JFS, is based on descent in the matrilineal line, does not, of itself, take Ms Rose anywhere. After all, discrimination against a hereditary peer because he is a hereditary peer is discrimination by reason of descent but has nothing to do with discrimination on racial grounds or grounds of ethnicity (unless, perhaps, taking up one of Lord Fraser's examples, the discriminator confines his attacks to those hereditary peers whose ancestors fought with the Conqueror at Hastings).
- Nor is this part of the argument saved by reliance upon the inclusion in Article 1.1 of CERD of the reference to "descent". As Mr Singh correctly says, that clearly does not mean any criterion based on descent. In accordance with Article 31 of the Vienna Convention on the Law of Treaties, the word "descent" in CERD needs to be read in its context and in the light of the object and purpose of CERD. So CERD, in my judgment, does not assist Ms Rose.
- Mr Singh helpfully distinguishes and submits that it is important to distinguish between:
i) Jewish ethnic origins meaning those who are part of the Jewish ethnic group for the purposes of the 1976 Act in accordance with the approach taken in Mandla;
ii) Jewish descent meaning those who have a Jewish parent; and
iii) Jewish status meaning those who are recognised by Jewish law as being Jewish.
As he correctly submits, the fact that someone is of a particular "descent" or has a particular "status" at birth does not mean that that is their "ethnic origin." And he submits, correctly in my judgment, that there is discrimination "on racial grounds" only if it based on someone's Jewish ethnic origins and not if it occurs on grounds of Jewish status or Jewish descent.
- Mr Singh puts the point very neatly when he submits that the significance of "descent" is that discrimination on grounds of descent from a person of a particular race or ethnic origin is obviously "on racial grounds", and is thus racial discrimination, but discrimination on grounds only of descent from a person of a particular religious status is not racial discrimination if religious status means something different as he says it does from race or ethnic origins.
- He illustrates the point by reference to Islam, founding his observation on the well-recognised fact that Muslims are not, within the meaning of the 1976 Act, a racial or ethnic group. So, as he points out, discrimination on the ground that an individual is a Muslim is not discrimination on racial grounds. Nor, and this is the important point, is discrimination on grounds that the individual, though not himself a Muslim, is descended from a Muslim. It is discrimination on grounds of religion, or descent from a religious status, and is not, in itself, racial discrimination. And it makes no difference that, as the Secretary of State understands it, a child born of a Muslim father is, as a matter of Muslim religious law, a Muslim. That, as Mr Singh says, is a matter of descent and status but not a matter of ethnic origins. So what, he asks rhetorically, is the difference between that and the present case?
- Ms Rose seeks to avoid this difficulty by reference to the second strand of her argument: not merely are Jews an ethnic group but so too are various Jewish sub-groups, so discrimination by reason of descent is, in this context, discrimination on grounds of ethnicity. But the difficulty here, as both Mr Oldham and Mr Jaffey pointed out, is that we are not concerned in this case with discrimination as between, for example, Sephardi and Ashkenazi Jews. The discrimination here is as between Orthodox and non-Orthodox Jews, and there is nothing to suggest that Orthodox and non-Orthodox Jews are members of different ethnic groups or ethnic sub-groups in the Mandla sense. Indeed, in their character as Orthodox and non-Orthodox Jews they are plainly not members of different ethnic groups or ethnic sub-groups.
- As Mr Oldham points out, there is no evidence at all before me to suggest that, for example, either Orthodox Jews or Masorti Jews (as opposed to Jews generally) have distinct ethnic origins. Indeed, as Mr Oldham comments, given that the father of the child plays no part in the definition of a child as an Orthodox Jew, and given that a person may be an Orthodox Jew with generations of paternal ancestors of different nations, races, colours and religions, and given also the issue of conversion, it is difficult to see how Orthodox Jews (as opposed to Jews generally) can be a distinct ethnic group. Precisely so. And exactly the same analysis applies, for example, to Masorti Jews. As Mr Oldham puts it, Masorti Jews are defined only in terms of synagogue membership. Jews are all members of one ethnic group and they may, though not by reason of practice or observance, also be members of different ethnic sub-groups for example, Sephardi or Ashkenazi Jews but that is all. As Mr Jaffey correctly puts it, particular Jewish denominations are not, as such, separate ethnic groups or sub-groups. Ms Rose says that she is not asserting the contrary, but she is, as it seems to me, unwilling to accept the consequences of where that concession takes her.
- At the end of the day Ms Rose seeks to rely upon what she says is the combination of ethnicity and matrilineal descent. Putting it rather differently, she submits that "Jewish descent" and "Jewish ethnicity" are coterminous, because to be Jewish by descent you must be descended from a Jewish woman who was Jewish either by descent or by conversion and who was therefore necessarily, for the reasons given in Mandla, a member of the ethnic group. But the argument breaks down because, however the point is put, in the final analysis it is based on a principle of Jewish religious law which identifies and defines a Jewish status which is neither founded on nor creative of any distinctively Jewish ethnicity.
- The simple fact, in my judgment, is that JFS's admissions policy is, as the Schools Adjudicator correctly found, based on religious and not on racial (ethnic) grounds, reflecting, as it does, a religious and not an ethnic view as to who, in the eyes of the OCR and JFS, is or is not a Jew. Such an analysis, as both Mr Oldham and Mr Lewis point out, fits comfortably within the distinction drawn in Seide between actions by or in relation to Jews based on religious grounds and actions by or in relation to Jews based on racial (ethnic) grounds. As Mr Oldham succinctly observes, the cause of a non-Orthodox applicant failing to meet JFS's admission requirements can only be described as a religious cause, that is, the Jewish religious laws as described by Dayan Gelley and Registrar Frei. I agree.
- As Mr Singh points out, the correctness or otherwise of Ms Rose's analysis can be tested by reference to a number of hypothetical cases. He examines three:
i) Hypothetical 1: A has three Jewish grandparents who identified themselves as Jewish as a matter of ethnicity/culture. His maternal grandmother was not Jewish. For the purposes of the 1976 Act, A would be regarded as Jewish as a matter of descent and ethnic origins, but he would not be admitted to JFS, even if his mother has converted, unless her conversion is recognised as valid by the OCR.
ii) Hypothetical 2: B's mother converted to Judaism before he was born. The conversion was recognised as valid by the OCR. Some years later, and before B was born, she ceased any Jewish practices and no longer identified herself as Jewish as a matter of culture/ethnicity. B's father is not Jewish. B would be recognised as Jewish by the OCR and JFS but he would not be Jewish as a matter of blood/descent, having no biological ancestors who are Jewish. And if he did not identify himself as Jewish as a matter of culture/history/language he would also not be Jewish as a matter of ethnic origin.
iii) Hypothetical 3: C's maternal grandmother was Jewish (either by descent or conversion) but not any of his other grandparents. C would be regarded as Jewish by the OCR and JFS.
Other hypotheticals were offered during the course of argument by both Mr Oldham and Mr Jaffey but whilst illuminating, and reinforcing Mr Singh's analysis, they took the argument no further.
- What these hypotheticals demonstrate, according to Mr Singh, is that the ethnic origin of each of A, B and C (in terms of their identification with or participation in Jewish culture etc) is entirely irrelevant to JFS's admission arrangements. Those arrangements operate, as a matter of objective fact, he says, on religious and not on racial (ethnic) grounds. As he correctly observes, A would not come within JFS's admissions policy despite, as he puts it, being Jewish as a matter of descent/ethnic origin. B, on the other hand, would be admitted, despite, as Mr Singh puts it, not being Jewish as a matter of descent/ethnic origin. C would also be admitted even though, he suggests, A could be said to be more "Jewish" as a matter of descent. Thus JFS, he says, will give preference in admissions to a child who is less racially/ethnically Jewish, or not racially/ethnically Jewish at all, over one who is Jewish as a matter of race (ethnicity), if that child is, in the eyes of the OCR and JFS, Jewish as a matter of religion. And this is borne out, he says, by the fact that it is immaterial whether the child's mother is Jewish as a matter of racial or ethnic origin; the only matter considered by the OCR and JFS is whether she is Jewish as a matter of religion.
- The fact that, as he would submit, religion is the true focus here, is illustrated, Mr Singh says, by the very fact that at the heart of all the three cases I am considering is a dispute a quintessentially religious dispute about the validity of the conversion of the applicant child's mother. As Mr Singh rightly says, a dispute about what constitutes a valid conversion is simply not a matter which engages the 1976 Act at all; it is a question of religious doctrine on which the secular courts should be wary to tread. I entirely agree.
- Ms Rose seeks to escape the implications of Mr Singh's hypotheticals by challenging his analysis. She says that A is only Ύ Jewish and not, if I can put it like this, Jewish as to the relevant Ό his maternal grandmother. She says that B is indeed Jewish because his mother, at the moment of conversion, and by accepting membership of and by being accepted as a member of the Jewish community, became Jewish by ethnicity and culture. It seems to me, with all respect, that Ms Rose's ripostes merely go to demonstrate the essential correctness of Mr Singh's argument, for what, in the final analysis, she relies upon has to rely upon is a principle of Jewish religious law.
- At the end of the day, what one has here, as Mr Oldham correctly submits, is at most discrimination on religious grounds between one part and another part of what the law recognises as a racial (ethnic) group, but that, as he correctly submits, is not race discrimination.
- I agree that, essentially for all the reasons advanced by the Schools Adjudicator, Mr Oldham, Mr Jaffey and Mr Singh, there has been no direct race discrimination. The discrimination is based on religion not on race or ethnic origin. And the discrimination does not become discrimination on grounds of race (ethnic origin) merely because the relevant religious belief defines membership of the group by reference to descent.
- Quite apart from all other arguments, and as a quite separate point, Mr Oldham relies upon section 35 of the 1976 Act as providing a defence to the present claim, on the basis that JFS is "affording persons of a particular racial group access to facilities or services to meet" their "special needs
in regard to their education, training or welfare."
- I am sceptical as to whether section 35 operates in the way that Mr Oldham suggests. I am inclined to think that the reference to "special needs
in regard to
education" is, for example, to educational establishments providing a specifically religious training for priests, rabbis, imams and similar people, not to ordinary schools, even if they are faith schools. But I have had little argument on a point which is potentially of very wide significance. Given that the claim fails on other grounds I prefer not to come to any final conclusion on this particular point.
- I conclude, therefore, that the claim based on alleged direct race discrimination fails.
Objections to the admissions policy: indirect race discrimination
- I turn to the question of indirect race discrimination. It is common ground that two questions arise:
i) First, whether JFS's admission arrangements constitute, within the meaning of section 1A of the 1976 Act, a "provision, criterion or practice" which puts individuals of certain races or ethnic origins at a "disadvantage"?
ii) Secondly, if they do, can JFS's admission arrangements be justified as being, within the meaning of section 1A(c) a "proportionate means of achieving a legitimate aim"?
- With all respect to Mr Oldham's faintly adumbrated arguments to the contrary, the first question does not, in my judgment, admit of much debate. As both Ms Rose and Mr Singh point out, and as the Schools Adjudicator accepted, those who are not of Jewish racial or ethnic origins are less likely to be regarded as Jewish according to Jewish law and therefore less likely to be admitted to JFS. As Mr Singh puts it, a Jewish school that gives preference to those of Jewish status will favour those of certain ethnic origins.
- But this is, I emphasise, nothing peculiar to Jewish schools. As Mr Singh accepts, a similar outcome is likely to be the case for every faith school that gives priority to members or adherents of one faith over another, given that every religion that has a faith school in this country is disproportionately represented among some ethnic groups (or groups defined by reference to "national origins") over others. Mr Singh and Mr Jaffey give the examples of English Anglicans, Italian, Polish and Irish Catholics, Indian Hindus, Pakistani Muslims; there are of course many others.
- The fact, as Mr Singh observes, is that many faith schools which give preference to members of or adherents to a particular faith are for that very reason likely to place those of certain racial, ethnic or national origins at an advantage and others at a disadvantage. Indeed, Mr Singh, very properly, does not shrink from the reality that, in principle, every faith school must therefore be able to show that its admissions arrangements pursue a legitimate aim and are proportionate.
- I turn therefore to the second and much more significant question.
- Ms Rose rightly emphasises how strictly the law assesses all attempts to justify practices which are potentially racially discriminatory. Race discrimination is a great evil: see the powerful and illuminating comments of Arden LJ in R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293, [2006] 1 WLR 3213, at paras [270]-[271]. And the Strasbourg jurisprudence shows that in the kind of situation with which I am here concerned, "severe" or "intense" scrutiny is called for and that "very weighty reasons" are required to justify measures which are indirectly discriminatory: see, for example, DH v Czech Republic, R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37, [2006] 1 AC 173, at paras [57]-[58] and Elias at paras [158]-[162], [297].
- Ms Rose correctly submits that the burden of justification falls upon the defendant, that the measure in question must be shown to correspond to a "real need" (see, for example, Allonby v Accrington and Rossendale College [2001] EWCA Civ 529, [2001] ICR 1189, at para [28]) and that the means adopted must be "appropriate" and "necessary" to achieving that objective. There must be a "real match" between the end and the means (see Elias at para [177]). The court must "weigh the justification against its discriminatory effect" (Allonby at para [27]) with a view to determining whether the seriousness of the alleged need is outweighed by the seriousness of the disadvantage to those prejudiced by the measure (Allonby para [29]), always bearing in mind that the more serious the disparate impact the more cogent must be the objective justification (Allonby at para [24] referring to Barry v Midland Bank plc [1999] ICR 859 at page 870). As Ms Rose comments, the stringency of these requirements is illustrated by what Sedley LJ said in Allonby at paras [26]-[29].
- It follows, as Ms Rose correctly submits, that what has to be justified in a case such as this is the discrimination, not just the underlying policy objective. So, as she puts it, it is not just the desire to keep a "culturally Jewish" school which must ultimately be justified that is merely the legitimate aim what has also to be justified are the discriminatory means adopted of seeking to achieve this objective.
- Against this background of principle, I turn to consider first the question of "legitimate aim" and "real need."
- Mr Singh submits that faith-based admission criteria generally pursue a legitimate aim. Government policy, endorsed by Parliament, has for many years been to allow faith schools to give priority in admission to those of their designated faith. This policy, as he rightly says, adds to the diversity and choice available to parents and enables parents who wish their children to be educated in line with the ethos and values of their faith to do so within the State sector. It is a legitimate aim embodied in a policy with which the court should be slow to interfere. If faith-based admission criteria are no longer to be allowed, then that, he says, should be a matter for Parliament. Moreover, as he points out, Parliament in enacting section 50 of the 2006 Act has implicitly endorsed faith-based admission criteria, notwithstanding the potentially discriminatory effects of such a policy. So, as he correctly submits, Parliament must be taken to have regarded faith-based admission criteria as fulfilling a sufficiently weighty social or educational aim to permit their continuance. Moreover, he points to Article 2 of Protocol 1 as showing the legitimacy of such considerations.
- These are compelling submissions which I have no hesitation in accepting.
- Furthermore, he submits, there is nothing objectionable about faith-based admission criteria which are based on "membership" of a faith rather than religious "practice". The School Admissions Code, as I have already mentioned, explicitly permits admissions criteria to give preference to those who are "members of, or who practise, their faith or denomination" (emphasis added). Some schools, as he points out, referring to the evidence filed on behalf of the Secretary of State, give preference to children who actively practise a particular faith; others give preference to children born or raised in a particular faith and whose parents wish them to be educated in line with the values and ethos of that faith even if their levels of religious practice are limited or unknown. This also, he submits, pursues the legitimate aims of faith-based schooling of encouraging diversity. I agree. So, he submits, there is nothing objectionable in principle about a Catholic school which gives preference to baptised children, even if they and their family may be "lapsed Catholics", or to a Muslim school which gives preference to all who are born Muslim, even if they do not practise their faith. So why, in principle, should there be any objection to a Jewish school giving preference to those who by status are Jews? Again, the arguments are compelling and I have no hesitation in accepting them.
- There is also, as it seems to me, the important point that a policy which permitted preferences only on the basis of religious practice would prejudice religions, such as Judaism, which define membership exclusively by status and not by practice or observance.
- So much for the legitimacy of the aims of faith school generally. What of the aims of JFS? What are they? Are they legitimate? And do they meet a real need?
- There has been much semantic debate before me on these points, but I have to say that the aim or objective of JFS, as spelt out in the materials from which I have already quoted at some length, is clear enough: it is to educate those who, in the eyes of the OCR, are Jewish, irrespective of their religious beliefs, practices or observances, in a school whose culture and ethos is that of Orthodox Judaism. That, as I read his decision, is what the Schools Adjudicator found, and in my judgment he was right to do so.
- Ms Rose submits that the Schools Adjudicator erred in coming to this conclusion, drawing attention to the fact that JFS is designated as a "Jewish", and not as an "Orthodox Jewish", school and also to the fact that, as she puts it, JFS's website celebrates the fact that not all its pupils are observant Jews and indeed claims that its students "reflect the very wide range of the religious spectrum of British Jewry". So it is and so it does, but none of this, with all respect to Ms Rose, detracts from the essential fact that the core aim of JFS is to educate those whom it, in common with the OCR, considers to be Jews, irrespective of their practice or observance, and in an ethos which is avowedly Orthodox Jewish.
- That is JFS's aim or objective and that, in my judgment, is in principle an entirely legitimate aim meeting a real need. If, as Mr Singh has correctly argued, it is legitimate for a Muslim school to give preference to those who are born Muslim, or for a Catholic school to give preference to those who have been baptised, even if they have fallen away from the faith, with the aim of educating them in an appropriate religious ethos perhaps with the view of bringing them back within the fold then why should it not be equally legitimate for a school like JFS to give preference to those whom it treats as Jews even if they have fallen away from or have never known the faith? There is, in my judgment, no material difference at all; certainly it can make no difference that in the one case "membership" of the religion depends upon the father's status, in another upon a religious rite conducted in infancy and in the third upon the mother's status.
- Ms Rose submits that, even if this is JFS's aim, it is irrational for it to seek to buttress its ethos by reference to its entrance criteria. I have to confess (no doubt the failure is mine) that I do not fully understand the point she is seeking to make, and it is not improved by her reference to Governing Body of the London Oratory School; Adams; Goodliffe; and Lindsay v The Schools Adjudicator [2004] EWHC 3014 (Admin), [2005] ELR 162. It is, I should have thought, perfectly obvious as a general principle that a school's ethos is inseparable from its admissions criteria, for any significant change in the one will, sooner or later, lead to change in the other.
- Nor is there any substance in her further complaint that there is no rational connection between JFS's espoused aim to develop the religious character of JFS in accordance with the principles of Orthodox Judaism and the means chosen to pursue it namely giving priority to children simply because they are Jewish in the eyes of the OCR even if they are not practising Jews. It is, she says, irrational, indeed absurd, to seek to develop a school's Orthodox Jewish religious character by adopting admissions criteria which give preference to an Orthodox Jewish atheist whose mother has abandoned Judaism and is a practising Christian, over an observant adherent to Masorti or Reform Judaism (and she gives other examples of what she says are similar absurdities).
- The irrationality or absurdity to which Ms Rose refers appears only if one assumes that religion is necessarily a matter of belief, practice and observance and that it is only on those grounds that a faith-based school can properly base its admissions policy. But that, as I have sought to explain, is simply not so; not so in relation to Judaism and not so in relation to other religions. Moreover, it gives a seriously limited and inadequate recognition to what may properly rationally and sensibly be implicated in the concept of being a member of a religious community.
- As Mr Oldham comments, pithily but accurately, these assertions of irrationality, are misconceived, not least because it is merely what he calls another instance of E's refusal to accept the consequences of the fact that it is Orthodox Judaism's belief that observance has nothing to do with Orthodox status and that, as he correctly submits (correctly, that is, from the perspective of Orthodox Judaism), non-observant Orthodox Jews are Jews whilst the observant of other Jewish religious groups are not; and also because these assertions are, and I agree, inconsistent with the clear policy which underlies the School Admissions Code.
- The only remaining question is whether the policy, given that it pursues a legitimate aim, can be justified as a proportionate and necessary means to that end. Ms Rose submits not, asserting that JFS's admissions policy does not properly balance the impact of the policy on those like M adversely affected by it and the needs of the school. The Schools Adjudicator did not agree, Nor do I.
- Two quite separate considerations drive me to this conclusion. In the first place, the kind of admissions policy in question here is not, properly analysed, materially different from that which gives preference in admission to a Muslim school to those who were born Muslim or preference in admission to a Catholic school to those who have been baptised. But no-one suggests that such policies, whatever their differential impact on different applicants, are other than a proportionate and lawful means of achieving a legitimate end. Why, Mr Oldham asks rhetorically, should it be any different in the case of Orthodox Jews? And to this pointed question there has, as he says, been no effective answer hardly surprisingly, he adds, because any such difference in the treatment of the two cases would plainly be discriminatory against Jews. I agree. Indeed, the point goes even wider that the two examples I have given for, as Mr Oldham submits, if E's case on this point is successful then it will probably render unlawful the admission arrangements in a very large number of faith schools of many different faiths and denominations.
- The other point is that made both by the Schools Adjudicator and by Mr Oldham. Adopting some alternative admissions policy based on such factors as adherence or commitment to Judaism (even assuming that such a concept has any meaning for this purpose in Jewish religious law) would not be a means of achieving JFS's aims and objectives; on the contrary it would produce a different school ethos. If JFS's existing aims and objectives are legitimate, as they are, then a policy of giving preference to children who are Jewish applying Orthodox Jewish principles is, they say, necessary and proportionate indeed, as it seems to me, essential to achieve those aims. Mr Oldham puts the point very clearly. JFS exists as a school for Orthodox Jews. If it is to remain a school for Orthodox Jews it must retain its existing admissions policy; if it does not, it will cease to be a school for Orthodox Jews. Precisely. To this argument there is, and can be, no satisfactory answer.
- In my judgment JFS's admissions policy can comfortably be justified as being, within the meaning of section 1A(c) of the 1976 Act, a "proportionate means of achieving a legitimate aim," and I come to that conclusion having, I hope, had proper regard to the principles in such cases as Allonby and Elias.
- I conclude, therefore, that the claim based on alleged indirect race discrimination fails.
Objections to the admissions policy: breach of section 71
- As Ms Rose points out, the Governing Body does not deny what she says is obvious, namely that it did not even consider the potential discriminatory impact of the admissions policy in accordance with section 71. In its acknowledgement of service it sought to argue (a) that if no claim of direct or indirect discrimination is made out, section 71 "will take matters no further" and (b) that section 71 is a non-enforceable target duty. Ms Rose says baldly that these contentions are simply wrong. I agree.
- As to the first she says that this argument was unequivocally rejected by Elias J (at first instance) in R (Elias) v Secretary of State for Defence [2005] EWHC 1435 (Admin), [2005] IRLR 788, at paras [97]-[98], and by Dobbs J in Eisai Limited v The National Institute for Health and Clinical Excellence [2007] EWHC 1941 (Admin) at paras [71], [91]-[92]. I agree. The Governing Body's assertion, if correct, goes (if at all) to the question of remedy for the breach of section 91, not to the question of breach.
- As to the second, Ms Rose says that the courts have never treated section 71 as imposing merely a target duty. There is an unqualified duty to comply with section 71, albeit, as Dyson LJ pointed out in R (Baker and others) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141 at para [31], the duty is not a duty to achieve a result, namely to eliminate unlawful racial discrimination or to promote equality of opportunity and good relations between persons of different racial groups, it is a duty to have due regard to the need to achieve these goals. The object of section 71, according to Ms Rose, and I agree, is to ensure that the potential racial impact of a decision is always taken into account by public authorities as a mandatory relevant consideration.
- Ms Rose points to authority as demonstrating the stringency of the obligation imposed by section 71. First, there is what Arden LJ said in R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293, [2006] 1 WLR 3213, at para [274]:
"It is the clear purpose of section 71 to require public bodies to whom that provision applies to give advance consideration to issues of race discrimination before making any policy decision that may be affected by them. This is a salutary requirement, and this provision must be seen as an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. It is not possible to take the view that the Secretary of State's non-compliance with that provision was not a very important matter. In the context of the wider objectives of anti-discrimination legislation, section 71 has a significant role to play."
- In R (BAPIO Action Limited) v Secretary of State for the Home Department 2007] EWHC 199 (Admin), Stanley Burnton J, as he then was, found that there had been a breach of section 71, though in the event granting only declaratory relief. He commented (at para [69]) that "if there had been a significant examination of the race relations issues involved
there would have been a written record of it." The case went to the Court of Appeal, though not on this point: [2007] EWCA Civ 1139. Sedley LJ referred (at para [3]) to "the importance of compliance with s 71, not as a rearguard action following a concluded decision but as an essential preliminary to any such decision. Inattention to it is both unlawful and bad government." This, as Ms Rose points out, is hardly language descriptive of a mere target duty.
- The most recent statement of principle is to be found in R (Baker and others) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141. Dyson LJ rejected the submission (see at para [35]) that a person does not perform the section 71(1) duty unless he demonstrates by the language in which he expresses his decision that he is conscious that he is discharging the duty, saying at para [36]:
"I do not accept that the failure of an inspector to make explicit reference to section 71(1) is determinative of the question whether he has performed his duty under the statute. So to hold would be to sacrifice substance to form."
But, as he said at para [37]:
"The question in every case is whether the decision-maker has in substance had due regard to the relevant statutory need. Just as the use of a mantra referring to the statutory provision does not of itself show that the duty has been performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed
To see whether the duty has been performed, it is necessary to turn to the substance of the decision and its reasoning."
- Mr Oldham seeks to escape from these very clear authorities by deploying a number of arguments. He suggests that it is hard to see how section 71 applies as an enforceable duty in a situation where there are in any event specific duties under the 1976 Act enforceable in the County Court, seeking to bolster this argument with the comment that the cases relied upon by Ms Rose were cases in which there was no other directly enforceable provision of the 1976 Act. That may have been so, but I do not understand the relevance of a point which seems to me to cast not the slightest doubt upon either the plain meaning of section 71 or the principles laid down in the cases to which Ms Rose has referred me. In any event, he says, section 71 takes the matter no further because, and this is really the kernel of his argument, there can be no failure to have regard to the need to eliminate race discrimination when the decision (in the present case, to adopt the admissions policy) "could have no impact on race equality." In other words, section 71 does not bite where there is no question of race discrimination on the facts. Somewhat inconsistently, it might be thought, Mr Oldham also sought to argue (though without providing much detail in support) that there had in fact in the present case been sufficient consideration given to the issue to satisfy the test as stated by Dyson LJ in Baker.
- I can accept that section 71 is not engaged in a situation where no question of racial discrimination is capable of arising or where it is manifest that no such question in fact arises. But the present is not such a case, as the discussion above of the question of indirect discrimination makes clear. So this was a situation where, despite Mr Oldham's submission to the contrary, section 71 was in my judgment quite clearly engaged. Can it be said that sufficient consideration was given to the issue to satisfy the test as stated by Dyson LJ? In my judgment, not.
- On one level JFS obviously did consider matters of racial discrimination: JFS's Race Equality Policy which I have referred to in paragraph [28] above shows that. But is that enough? In my judgment it is not. Mr Oldham cannot take me to anything else in support of the contention that the duty under section 71 was here complied with.
- Proper compliance with section 71 requires the relevant public body to have regard to to direct its mind to both the requirement in section 71(1)(a) and the requirement in section 71(1)(b), in other words it must direct its mind both to the need to eliminate unlawful racial discrimination and to the need to promote equality of opportunity and good race relations. The second of these requirements is significant as showing that it is not enough, if the section 71 duty is to be complied with, merely to be able to point to the existence of a non-discrimination policy and that is really, as it seems to me, as far as paragraph 1.2(b) of JFS's Race Equality Policy goes. Proper compliance with section 71 requires that appropriate consideration has been given to the need to achieve statutory goals whose achievement will almost inevitably, given the use of the words "eliminate" and "promote", involve the taking of active steps. Where does one find, in any of the materials I have been taken to, consideration by JFS of the need to do these two things or, more particularly, any consideration of specific ways in which these goals might be achieved? The answer is that one does not.
- In my judgment, JFS, despite the good intentions embodied in its Race Equality Policy, and despite the work which obviously went into it, has failed to comply in full with the requirements of section 71. In the circumstances E, if he wishes, is entitled to a declaration to that effect. But the breach does not, in my judgment, entitle him to any other relief against JFS. For it is quite idle to imagine that the fullest and most conscientious compliance with section 71 would have led to any difference either in the crucial part of JFS's admissions policy or in its application in M's case.
- The question of whether the same criticism is properly directed at the Appeal Panel is, in my judgment, linked with other questions to which I must come in due course. I shall accordingly return to that question below.
Objections to the admissions policy: failure to reflect JFS's designated religious character
- This complaint is an independent point which, Ms Rose stresses, arises whether or not the admissions policy unlawfully discriminates on racial grounds.
- This part of E's case is based on the fact that the Secretary of State, as we have seen, designated JFS as a "Jewish" school and not, as he might have done and has in fact done in other cases (compare the designation under the Designation of Schools Having a Religious Character (Independent Schools) (England) (No 2) Order 2003, SI 2003/3284, of Kerem School, Barnet, and Manchester Junior Girls School (Salford)) as "Orthodox Jewish".
- Ms Rose submits that the reliance by JFS on its instrument of government as showing that its religious character is "Orthodox Jewish" is misplaced, because for the purpose of permitting JFS to derogate from the Equality Act 2006 its religious character is defined not by its instrument of government but by the nature of its designation by the Secretary of State, who has, after statutory consultation with the Governing Body, decided to designate it as "Jewish" although, she submits, it would have been open to him to designate it as "Orthodox Jewish" had he considered that to be the relevant denomination.
- Accordingly, submits Ms Rose, the Schools Adjudicator was wrong in asserting (in paragraph 17 of his Decision) that the word "Jewish" in the Order was "not used with precision, and was not used in a way that was intended to delimit the admissions policy of the School." There was, she says, no warrant for concluding that the statutory designation, adopted following consultation, was not precise.
- In these circumstances, and having regard to paragraphs 1.76 and 2.41 of the School Admissions Code (see below), JFS in formulating its admissions policy was obliged, she says, to consider the needs and interests of all parts of the Jewish community in its area, and not merely the orthodox Jewish community. It could not lawfully or rationally adopt admission arrangements giving priority only to children recognised as Jewish by the OCR.
- That is the first, and major, part of the argument, but there is also a subsidiary point. Ms Rose submits that there is nothing in JFS's instrument of government which permits, let alone requires, JFS to abide exclusively by decisions of the OCR as to the Jewish status of pupils. On the contrary, as she points out, the instrument of government refers to the "guidance" of the Chief Rabbi.
- Mr Oldham submits that Ms Rose misconceives the meaning and effect of section 69 of the 1998 Act in asserting that it regulates indeed determines the religious ethos of a school. As he points out, section 69 is in Part II of the Act, which deals with religious education, whilst admissions are dealt with in Part IV of the Act. What, he submits, does regulate a school's religious ethos where, as here, it is set out there, is the school's instrument of government, for section 21(4) of the Education Act 2002 provides, so far as material, that:
"The governing body of a maintained school shall, in discharging their functions, comply with
(a) the instrument of government."
- Furthermore, and as Mr Oldham points out referring for this purpose to the explanatory note to the Religious Character of Schools (Designation Procedure) Regulations 1998, SI 1998/2535,
"Religious character is not acquired or lost by virtue of being designated or not designated under the procedure set out in these Regulations. Designation is the recognition of a religious character which a school already has as a question of fact. Under the Act a school must first close if it wishes to acquire or change religious character."
As a matter of fact, JFS is an Orthodox Jewish school. Indeed, as Mr Oldham observes, that is precisely E's complaint.
- Moreover, and in any event, Mr Oldham submits, the precise wording in the relevant order is not significant, a point borne out by the designations given to a number of other schools under the Designation of Schools Having a Religious Character (Independent Schools) (England) (No 2) Order 2003, SI 2003/3284, referred to and relied upon by Ms Rose. Thus, the same order lists another two schools as "Jewish" and a number of Christian schools under a variety of designations "Roman Catholic", "Catholic" (Ampleforth College and another), "Church of England", "Evangelical, Church of England", "Christian Anglican", "Anglican Christian", "Christian non denominational" and "Christian"; there is also a "Quaker" school and a "Reformed Baptist" school.
- And linked to this is another point for, as Mr Oldham observes, it is not inaccurate to describe JFS as Jewish, the point being that Orthodox Jews would regard themselves as those who are truly Jewish, in the same way that some of those whom Protestants may refer to as Roman Catholics would describe themselves (as in the case of two of those referred to in this Order) as Catholic, on the basis that theirs is the only Catholic church. For this reason, he submits, there is in fact no inconsistency as alleged between the designation and the admissions policy.
- In sum, he submits, there is nothing in the point, which the Schools Adjudicator was right to dismiss for the reasons he gave (being essentially the same as the reasons put forward by Mr Oldham). Mr Lewis on behalf of the Schools Adjudicator also makes the point (which is historically accurate as a matter of fact) that it was not until 2003 that schools began to be designated as Orthodox Jewish, as opposed to simply Jewish, although almost all the schools designated prior to that date as Jewish were in fact, like JFS, Orthodox Jewish.
- In my judgment, Mr Oldham is right, and essentially for all the reasons he has given, just as the Schools Adjudicator was right for the reasons he gave. The terms of the Secretary of State's designation are not determinative in the way which Ms Rose would have me accept. On the contrary, the school's obligation is, as Mr Oldham points out, to comply with its instrument of government.
- Nor, in my judgment, is there any force in Ms Rose's subsidiary argument. The fact that JFS's instrument of government does not require it to abide by the decision of the OCR is, for this purpose, neither here nor there. The fact that it does not in terms permit it to do so is equally, for this purpose, neither here nor there.
- I conclude, therefore, that these grounds of complaint fail.
Objections to the admissions policy: sub-delegation to the OCR / fettering of discretion
- It is not could not be disputed that the Governing Body exercises no independent judgment, but always follows decisions of the OCR as to a child's Jewish status. In other words, it delegates the determination of this issue to a body which, as Ms Rose points out, and as is well known, is not subject to any appeal, is not amenable to judicial review and is therefore, in secular terms, legally unacountable: R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth ex p Wachmann [1992] 1 WLR 1036.
- Mr Rose accepts that, conformably with the School Admissions Code, JFS is entitled to take account of guidance from the OCR as to the Jewish status of applicants, but submits that it is not entitled to delegate the decision whether or not to admit a child either to the OCR or, for that matter, to any other external body. She relies upon the well-known principle of the common law (delegatus non potest delegare) as expressed in De Smith's Judicial Review, ed 6, at para 5-138:
"when a power has been conferred to a person in circumstances indicating that trust is being placed in his individual judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another."
(Here the relevant functions and powers are those conferred on the Governing Body by sections 86 and 89 of the 1998 Act.) The present case, she submits, is a classic example of circumstances where a public law power to apply admissions criteria to a maintained school cannot fairly be delegated to an unaccountable private body itself not susceptible to judicial review, without what she calls patent unfairness which the law will not permit. Because the OCR is not amenable to judicial review, this delegation would have the effect, she says, of immunising entirely from challenge on public law grounds a decision even if the OCR had acted unfairly or had discriminated on racial grounds. The delegation, she says, was therefore unlawful.
- In support of her more fundamental attack on the unlawfulness of the delegation by JFS of its functions to the OCR, Ms Rose also submits that it would make a nonsense of the requirement in the School Admissions Code for clarity (see below) if a school's governing body could purport to exercise a clear criterion (being of X group as determined by body Y) if body Y could determine the issue of status on subjective, individual grounds and/or grounds which discriminate in legally impermissible ways.
- Ms Rose emphasises that the issue here is not a matter of simple fact like an objectively verifiable height or weight requirement where the essentially ministerial task of measurement or assessment can properly be delegated to another. Whether or not a child is "Jewish" in the sense required by JFS admissions policy is, she says, obviously a matter of judgment in which look, she says, at the cases of the L family and the S family various intangible qualities have, in particular cases, been brought into play and moreover, she asserts, "in dubious circumstances of fairness."
- Finally, Ms Rose also complains that the Schools Adjudicator failed to deal with this point in his decision. (That is so but, as Mr Lewis on his behalf points out, this was not in fact a ground of objection canvassed by E. It was canvassed by Mr and Mrs L in their objection and was considered, and rejected, by the Schools Adjudicator in his determination in their case.)
- The short answer to all this, in my judgment, is that given by Mr Oldham. As he points out, the key duty under section 89 of the 1998 Act is to "determine
admission arrangements" and that duty, as he correctly submits, was performed by JFS in framing its admissions policy and, moreover, without delegation of that task to the OCR or to any other person. All that was delegated was the determination by an appropriate person (the OCR) of whether a criterion for admission as determined by JFS (Orthodox Jewish status) had in fact been fulfilled by a particular candidate as a matter and it is necessarily a matter of Jewish religious law. Essentially the same point is made by Mr Lewis. And that, say both Mr Oldham and Mr Lewis, did not involve any unlawful delegation to the OCR of the task of determining, nor any unlawful fettering of the discretion to determine, the criteria for admission. I agree.
- Moreover, as Mr Oldham correctly says, that was not merely appropriate for religious issues should surely be dealt with by the relevant religious authority but it was in accordance with what other faith schools do. Thus, for example, I was taken in this context to Governing Body of the London Oratory School; Adams; Goodliffe; and Lindsay v The Schools Adjudicator [2004] EWHC 3014 (Admin), [2005] ELR 162, at para [24], as well as to materials showing practice in the Diocese of Westminster and the Diocese of Clifton, demonstrating that in the case of Roman Catholic schools, Catholicity is determined by reference to such matters as Canon Law, the Catechism of the Catholic Church, religious practice (attendance at Mass), commitment or knowledge of the faith and that it will involve a judgment by parish authorities. (In the case of the London Oratory School the parish priest was required to "endorse" a form setting out the applicant's "religious practice and commitment".) Moreover all this, as Mr Oldham points out, is consistent with para 2.43 of the School Admissions Code (see below) which actually envisages that "It is primarily for the relevant faith provider group or religious authority to decide how membership or practice is to be demonstrated" (emphasis added).
- I should add that I have also had regard to what is said in De Smith at para 5-139 in a passage with which I respectfully agree:
"The principle does not amount to a rule that knows no exception; it is a rule of construction which makes the presumption that "a discretion conferred by statute is prima facie intended to be exercised by the authority on which the statute has conferred it and by no other authority, but this presumption may be rebutted by any contrary indications found in the language, scope or object of the statute". Courts have sometimes wrongly assumed that the principle lays down a rule of rigid application, so that devolution of power cannot (in the absence of express statutory authority) be valid unless it falls short of delegation. This has resulted in an unreasonably restricted meaning being given to the concept of delegation."
That analysis reinforces my assessment that the result for which Ms Rose contends is neither dictated by any legal rule or principle nor consistent with the practical realities of administering faith-based admissions criteria.
- In my judgment, therefore, these grounds of complaint also fail.
Objections to the admissions policy: breach of the School Admissions Code
- As I have already pointed out, compliance with the Code is mandatory. The Code itself, as Ms Rose points out, distinguishes (see Introduction, paras 6 and 7) between mandatory requirements indicated by use of the word "must" and requirements which should be followed as a matter of good practice unless departure from them can be justified indicated by use of the word "should".
- Ms Rose has taken me to various passages in the Code. Paragraph 1.65 provides in relevant part that:
"In drawing up their admission arrangements, admission authorities must ensure that the practices and the criteria used to decide the allocation of school places:
a) are clear in the sense of being free from doubt and easily understood. Arrangements that are vague only lead to uncertainty and this may reduce the ability of parents to make an informed choice for their children. They are also likely to increase the chances of an objection;
b) are objective and based on known facts. Admission authorities and governing bodies must not make subjective decisions or use subjective criteria;
c) are procedurally fair and are also equitable for all groups of children (including those with special educational needs, disabilities, those in public care, or who may be a young carer);
d) enable parents' preferences for the schools of their choice to be met to the maximum extent possible;
e) provide parents or carers with easy access to helpful admissions information
;
f) comply with all relevant legislation, including on infant class sizes and on equal opportunities, and have been determined in accordance with the statutory requirements and the mandatory provisions of this Code."
Paragraph 1.67 provides so far as material that:
"Admission authorities and governing bodies must ensure that their admission arrangements and other school policies are fair and do not disadvantage, either directly or indirectly, a child from a particular social or racial group, or a child with a disability or special educational needs."
Paragraph 1.71 provides so far as material that:
"Admission authorities must not use supplementary application or information forms that ask:
a) for any personal details about parents,
"
Paragraph 1.72 provides so far as material that:
"Admission authorities must not discriminate against children whose parents fall into certain social groups. No personal information about parents is relevant in considering an application for a place at a school and criteria which focus on parents cannot legitimately be included as oversubscription criteria."
Paragraph 1.76 (which is headed 'faith schools') provides that:
"At faith schools, the prohibition in paragraph 1.71 does not prevent the use of a supplementary form that asks parents or children about their membership of or relationship with the church or religious denomination in accordance with paragraphs 2.41 to 2.53 of this Code."
Paragraph 2.13 provides so far as material that:
"In setting oversubscription criteria the admission authorities for all maintained schools must not:
e) give priority to children according to the
background of their parents;
"
- Paragraphs 2.41-2.49 deal with what are described as 'additional guidelines for faith schools'. Paragraph 2.41 provides that:
"It is unlawful under section 49 of the Equality Act 2006 for maintained, nonmaintained or independent schools to discriminate against a child on the grounds of the child's religion or belief in the terms on which it offers to admit him as a pupil or by refusing to accept an application for a place at the school. However, those schools designated by the Secretary of State as having a religious character (faith schools) are exempt and are permitted to use faith-based oversubscription criteria in order to give higher priority in admissions to children who are members of, or who practise, their faith or denomination. This only applies if a school is oversubscribed."
Paragraph 2.42 provides so far as material that:
"Faith-based oversubscription criteria must be framed so as not to conflict with other legislation, such as equalities and race relations legislation
"
Paragraph 2.43 provides so far as material that:
"As with all oversubscription criteria, those that are faith-based must be clear, objective and fair. Parents must easily be able to understand how the criteria will be satisfied. It is primarily for the relevant faith provider group or religious authority to decide how membership or practice is to be demonstrated, and, accordingly, in determining faith-based oversubscription criteria, admission authorities for faith schools should only use the methods and definitions agreed by their faith provider group or religious authority
"
Paragraph 2.46 provides so far as material that:
"Published admission arrangements must make clear how membership or practice is to be demonstrated in line with guidance issued by the faith provider group or religious authority. Whatever method is used it must be clearly objective and transparent
"
Paragraph 2.47 provides that:
"Religious authorities may provide guidance for the admission authorities of schools of their faith that sets out what objective processes and criteria may be used to establish whether a child is a member of, or whether they practise, the faith. The admission authorities of faith schools that propose to give priority on the basis of membership or practice of their faith should have regard to such guidance, to the extent that the guidance is consistent with the mandatory provisions and guidelines of this Code."
Paragraph 2.48 provides so far as material that:
"Admission authorities for faith schools should consider how their particular admission arrangements impact on the communities in which they are physically based and those faith communities which they serve."
- Ms Rose submits that the Schools Adjudicator erred in law in rejecting (at paragraph 19 of his Decision) E's objections to the admissions policy on this ground. Departure from the Code was unlawful, she says, because the Governing Body was bound to give effect to the terms of it. Ms Rose points to what she says are breaches of paragraphs 1.65, 1.71, 1.72. 2.13, 2.42, 2.43, 2.46, 2.47 and 2.48 of the Code, though she accepts that, to the extent that Code does no more than require compliance with the general law, the substance of E's complaints overlaps with his other complaints which I have already considered and rejected.
- Mr Oldham's response is succinct and to the point. There was, he submits, no breach of the Admissions Code whether by JFS or by the Schools Adjudicator and this ground of claim adds nothing to the previous grounds of complaint. If E's complaints fail on other grounds, as in my judgment they do, then reference to the Admissions Code does not, he says, give them any added weight. I agree.
- These matters were adequately dealt with by the Schools Adjudicator who explained why there was no substance in them. I agree with both his reasoning and his conclusions. There is no need for me to repeat them.
- I conclude, therefore, that these grounds of complaint likewise fail.
Objections to the admissions policy: admission criteria unclear and unfair in relation to conversion
- The School Admissions Code, as we have seen, requires that admissions criteria be clear, specific and fair. Ms Rose submits that JFS's admissions policy does not satisfy these criteria. The "enrolled on a course of conversion" limb in paragraph 1.1 of the admissions policy was, she says, unfair and misleading because there are no realistic circumstances in which it is capable of being satisfied by a ten year old child. In support of this factual assertion, Mr Rose points to:
i) E's evidence of what he was told by Rabbi Rashi Simon of the OCR, namely that the OCR would recognise only conversions preceded by a course of study, religious instruction and observance which took several years, and that it would only be on completion (or very rarely at the very end) of this process that the OCR would even consider recommending a child for JFS.
ii) The absence of any mention in JFS's submission to the Appeal Panel of the "test" of Jewish status addressing the circumstances of would-be or partial converts.
iii) The confirmation by JFS before the Schools Adjudicator that no students had been admitted to JFS under this provision.
iv) The response by JFS dated 17 December 2007 to the questionnaire pursuant to section 65(2) of the Race Relations Act 1976 served by E as part of the pre-action letter dated 17 August 2007. In answer to the question how many children admitted to JFS in the last three years were not Halakhically Jewish but had embarked upon an approved course of conversion, the answer was "Information not gathered but believed to be none."
- Ms Rose complains that the Schools Adjudicator erred in fact in his consideration of this question (see paragraph 18 of his Decision) when he erroneously asserted that E's objection was based on his experience the previous year, 2006/07, when this did not form part of the admissions policy. In fact, says Ms Rose, E's complaint was based on the admissions policy for the year 2007/08, the year in which he applied for M's admission. (All that may be so, and the Schools Adjudicator frankly accepts that he made a slip, but, as Mr Oldham points out, it is clear from his decision that the Adjudicator did in fact deal with the admissions policy for the years 2007/08 and 2008/09 and, as Mr Lewis points out, declined to intervene because it made no difference to anything he had to decide, E not having in fact sought M's admission on this basis for the year 2007/08 and no admissions having been sought on this basis by anyone for the year 2008/09.)
- Quite apart from the irrelevance of the point to M's situation E not having in fact sought M's admission on this basis Mr Oldham submits that the factual premise underlying this complaint is simply wrong. He relies for this purpose upon the unchallenged evidence of Dayan Gelley who, in paragraph 28 of his witness statement, said that since this provision was introduced around 2 or 3 candidates for conversion per year who have not yet concluded their conversion are admitted to Orthodox Jewish schools under this or a similar provision in admissions policies. So, according to Dayan Gelley, it is wrong to suggest that there are no realistic circumstances in which a ten year old child could satisfy the policy.
- Moreover, says Mr Oldham, the Schools Adjudicator was right to reject this objection for the reasons he gave. This kind of judgment is, he says, entirely one for the Adjudicator, his decision cannot be impeached and there are in any event 'on the merits' no grounds for doing so.
- There is also the point, which the Schools Adjudicator made clear in his determination and which Mr Lewis understandably stresses, that if he had upheld this complaint (and as his determination makes clear he did have some concerns about the apparent lack of clarity as to this part of the admissions policy) he would have required the deletion of the reference to conversion courses which, as he points out, would not have assisted E and M or anyone else in their position.
- In my judgment, this complaint is, for the reasons given by Mr Oldham, both academic so far as both E and M are concerned and in any event largely lacking in any merit. Ms Rose has failed to establish any basis for relief.
- I conclude, therefore, that this ground of complaint fails.
Objections to the Appeal Panel's conduct: misdirection as to jurisdiction
- Regulation 6(1)(b) of the Education (Admissions Appeals Arrangements) (England) Regulations 2002, SI 2002/2899, requires the Appeal Panel to take into account the arrangements for the admission of pupils published by the governing body. Ms Rose submits that the Appeal Panel was wrong to refuse to consider E's grounds of appeal on the ground that it had no jurisdiction to consider the lawfulness of the admissions policy in the absence of "evident unlawfulness". She submits that the Appeal Panel misdirected itself in law.
- On the question of the extent to which an appeal panel is entitled or obliged to consider the legality of the policy in question I was referred to two authorities. The first is the decision of the Court of Appeal in R v Sheffield City Council ex p H [1999] ELR 511 where Pill LJ at page 523 said this:
"The appeal committee's duty is, of course, to determine the merits of individual appeals. The idea that it can do so without some reference to the lawfulness of the arrangements made by the LEA
is, however, unrealistic. An appeal committee is not obliged to treat those arrangements as if set in stone and beyond challenge. They may lack clarity or, as in this case, be unlawful. Mr McManus accepted, in the course of argument, that the appeal committee should not be obliged to enforce arrangements which were contrary to basic human rights or were racially or sexually discriminatory. Whether they do so offend, involves a legal judgment by the appeal committee
but I cannot agree that, as a matter of jurisdiction, the appeal committee is disentitled from considering legal issues."
He added at page 524:
"An appeal committee is not obliged slavishly to apply unlawful LEA arrangements
The difficulty of defining the jurisdiction of an appeal committee which is intended to reassure parents by virtue of its independence is plain. There is no simple answer to the conflict which may follow from a wish to create, on the one hand, a quasi-judicial procedure which aggrieved parents may use and, on the other hand, a procedure which does not interfere unduly with the needs of good administration
Good sense can be expected of committees in their approach to LEA arrangements. A committee is not obliged to ignore illegality if the merits of a particular case require adherence to legality."
Peter Gibson LJ agreed, saying at page 526:
"I do not see how one can properly distinguish between some illegalities and other illegalities. If it is permissible for the appeal committee to consider some questions of law, I cannot think that there can be any objection in principle to the committee considering other questions of law relevant to the appeal. Having said that, I fully recognise the practical difficulties to which Laws LJ rightly draws attention in his judgment. The primary function of the appeal committee is to determine the merits of the particular appeal. The appeal committee plainly has no power to quash the council's policy decision, but if the point had been taken (which it was not) on the appeals in respect of the appellants that the admissions procedure was unlawful
, I take the view that the appeal committee could not shut its eyes to that fact; nor could a fresh appeal committee do so. In each case it would have had to consider the effect of that illegality on the appeal before it."
Laws LJ, as will be seen, took a rather different position.
- The other decision is of the Court of Appeal in R (Hounslow London Borough Council) v School Admissions Appeal Panel for Hounslow London Borough Council) [2002] EWCA Civ 900, [2002] 1 WLR 3147. May LJ, with whom both Kennedy and Tuckey LJJ agreed, agreed (at para [59]) with the majority decision in the Sheffield case and said that "admission arrangements are not immune from examination as to their legality." He specifically rejected (at para [61]) the proposition that the Sheffield principle is limited to "established or self-evident unlawfulness" but said that "it will scarcely ever be necessary to go further than to consider whether their [the general admission arrangements] application to the particular child was perverse." Since in the particular case the admission arrangements were "not in general intrinsically or obviously unlawful" the judge at first instance had been "pragmatically correct in saying that the panel ought not to have taken upon itself the issue of unlawfulness." He commented (paras [59], [62]) that the appeals seemed to have got bogged down with questions of legality.
- On the basis of these authorities, Ms Rose submits that the Appeals Panel ought to have considered the question whether the Governing Body had acted unlawfully / irrationally in refusing to admit M as a pupil, including the question of whether the admissions policy was unlawful, either because it breached the 1976 Act or because it breached the mandatory requirements of the School Admissions Code.
- Mr Oldham's response is that even if the Appeal Panel's use of the phrase "evident unlawfulness" was inapt, it is quite clear from Hounslow that the Panel should not having been undertaking the kind of review of the admissions policy being suggested by Ms Rose. The idea that a lay panel should have to grapple with arguments such those deployed by E is, he says, totally unrealistic. Its decision not to do so was correct. In any event, since E's attack on the admissions policy fails, if the Appeals Panel had been obliged to consider its lawfulness, it would have found, correctly directing itself, nothing amiss with it.
- I agree with Mr Oldham that, consistently with the approach indicated by Hounslow, the Appeal Panel was right to decline to become engaged in the kind of exercise suggested by Ms Rose, even if its reasons for doing so might have been more felicitously expressed. And in any event, as Mr Oldham points out, given my findings on the matters in issue the process envisaged by Ms Rose would not in fact have given E what he wanted.
- Given my conclusions as to the proper scope of the proceedings before the Appeal Panel it follows, by parity of reasoning, that the complaint based on alleged non-compliance with section 71 of the 1986 Act is not one that can properly be laid at the door of the Appeal Panel. It was for JFS to comply with section 71; it was not, in my judgment, for the Appeal Panel to embark upon an investigation as to whether or not JFS had done so. Nor did the nature of the function on which the Appeal Panel was properly embarked in this case impose upon it any independent duty to comply with section 71 itself.
- I conclude, therefore, that these grounds of complaint fail.
- Lest it be thought that I have overlooked it, and lest this part of the judgment mislead the unwary, I should point out that, with effect from 1 March 2008, a new version of the School Admission Appeals Code (see below) has come into force, paragraph 3.24 of which provides that:
"In order for a panel to determine that an admission authority's decision to refuse admission was unreasonable, it will need to be satisfied that the decision to refuse to admit the particular child was "perverse in the light of the admission arrangements", i.e. it was "beyond the range of responses open to a reasonable decision maker" or "a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it". Panels must not analyse whether the admission arrangements themselves or the process which led to those arrangements being adopted were unreasonable or unlawful as these are matters for the Schools Adjudicator or the Secretary of State to consider separately."
- So the point which I have been considering will not arise in future.
Objections to the Appeal Panel's conduct: procedural unfairness
- Ms Rose asserts that the Appeal Panel conducted E's appeal unfairly in three respects:
i) First, in failing to give him notice of the Governing Body's response to the appeal in advance of the hearing, contrary to paragraph 4.29 of the School Admission Appeals Code of Practice 2003 and to the undertaking given in the letter of 19 May 2007. Paragraph 4.29 provides that:
"Admission authorities should make clear the grounds under which the appeal is to be considered to enable parents to prepare their appeal e.g. outlining the limited scope under which an infant class appeal may be upheld. For admissions to infant classes, if it is not clear, parents should be advised to prepare both on class size "prejudice" grounds and normal "prejudice" grounds."
ii) Secondly, in failing to notify him in advance that he could appeal on social or medical grounds (a matter, says Ms Rose, which appeared contrary to the terms of JFS's admissions policy on an initial reading). In this regard Ms Rose points to paragraphs 4.8, 4.26 and 4.29 of the Appeals Code of Practice as placing responsibility for drawing attention to potential grounds of appeal upon the school, not the parent, and, moreover (paragraph 4.28), at least five working days before the hearing.
iii) Thirdly, in failing to give him any or any adequate opportunity to make submissions or provide evidence in support of such grounds, informing him that any evidence which he wished to put in to support such a ground had to be available in less than 24 hours after the hearing.
Consequently, says Ms Rose, the Appeal Panel acted unfairly by failing to give E a full and fair hearing of all his grounds of appeal.
- Mr Oldham denies that there was any unfairness. Taking the three grounds of complaint in turn:
i) Whilst the Governing Body's delay was unfortunate, E declined the offer of an alternative date when he told the Appeal Panel that he had not seen the document. Moreover, since the grounds of appeal were entirely an attack on the lawfulness of the admissions policy this, Mr Oldham says, was the key feature of the appeal it was bound to fail since the policy was lawful and in any event its lawfulness was not a matter for determination by the Appeal Panel. In short, E has suffered no prejudice from what happened.
ii) E had chosen not to raise this as a ground of appeal, though given an entirely open opportunity to express his grounds of appeal as he wished. In raising it with him the Appeal Panel went further than it needed to. It was not for the Appeal Panel to suggest grounds of appeal.
iii) In the event E was able to deal fairly with all the relevant matters. During the hearing itself he addressed the Appeal Panel at some length about M's particular needs. He availed himself of the opportunity to make further submissions, sending a letter dated 5 June 2007 (though it took matters little if at all further). And even now E has failed to explain what more information he could and would have supplied if given more time or what difference it would or might have made to the outcome.
- Essentially for the reasons given by Mr Oldham I agree that there was no material unfairness on the part of the Appeal Panel. Whether looked at in detail or assessed in the round, I am satisfied that E had a full and fair hearing before the Appeal Panel. And where on points of detail it is possible to be somewhat critical I am quite satisfied that nothing happened to undermine the overall fairness of the proceedings. In this connection I should point out that E was afforded an adjournment during the hearing of the appeal on 5 June 2007 to consider the new material he had been given, that he declined any further adjournment and that he was afforded a further (albeit strictly time-limited) opportunity to make submissions after the conclusion of the hearing. Moreover, and in any event, E has been quite unable to demonstrate that he or M has suffered any possible prejudice as a result of anything that either happened or did not happen. Nor, as Mr Oldham points out, has he been able to identify, even now, what further material he would have put before the Appeal Panel if given more information by JFS or more time to prepare and conduct his appeal.
- In my judgment there was no unfairness and in any event neither E nor M has suffered any prejudice.
- Accordingly, this ground of complaint also fails.
Summary
- For these reasons, and with only one exception, each of E's various grounds of complaint fails and, with that one exception, both of his claims for judicial review must accordingly be dismissed. The one exception is the claim against JFS based on alleged breach of section 71 of the 1976 Act, where E has established his right to declaratory relief.
Other defences
- Although most of his claims have failed on their own lack of merit, I should say something about various other matters which were raised by way of defence to E's claims.
Other defences delay etc
- On behalf of JFS and the Appeal Panel Mr Oldham made two linked submissions in further answer to the claim against his clients: that insofar as the claim challenges JFS's admissions policy it is brought far too late and in any event against the wrong body. It is too late, he says, because the proceedings (commenced on 10 September 2007) seek to challenge a policy which was adopted in January 2006; it is brought against the wrong party because the proper mechanism for challenging such a policy is by objection to the Schools Adjudicator, the specialist tribunal established by Parliament for this very purpose. As Mr Oldham puts it, the Adjudicator is the specialist in the field. Moreover, as he says, referring to R v The Schools Adjudicator ex p Metropolitan Borough of Wigan [2000] ELR 620 per Latham J, as he then was, at para [19] and R (Metropolitan Borough of Wigan) v The Chief Schools Adjudicator [2001] ELR 574 per Ouseley J at para [15], it is clear that in determining the objection the Schools Adjudicator exercises an original jurisdiction; his task is not merely to review the authority's decision. So, says Mr Oldham, he is able to examine admission arrangements with an intensity and educational expertise not available to the court.
- I am not persuaded by either of these arguments. The first one, in my judgment, is plainly bad. The objection of a parent in E's position is not so much to the school's decision to adopt the policy after all, the policy may be of long-standing, even if formally renewed each year but to the application of the policy to the particular child. And in any event I would not on this ground have refused to grant E whatever relief he would otherwise have been entitled to. Nor am I much persuaded by Mr Oldham's other point. Whatever may be the proper approach in other more typical situations where the Schools Adjudicator is being asked to deal with matters of an educational nature where he really does have an expertise which the court lacks, the important issues raised in this case are properly matters for the court. And they are matters in relation to which the court has to come to its own findings and conclusions. So I do not accept that, in bringing the present proceedings against Mr Oldham's clients, E was suing the wrong party. On the contrary, E's real target was appropriately JFS.
- Mr Oldham has a separate point on delay. He says that because the Appeal Panel's decision was on 11 June 2007, the proceedings (which were commenced on 10 September 2007 the very last day of the three month period) were not brought promptly, particularly in the context of a dispute in relation to admissions. And that delay, which he says has not been properly explained, has, he says, caused prejudice inasmuch as an adverse decision will impact upon those applying to JFS for 2008/09. In relation to this school year, the fact is that parents will have expressed their preferences in October 2007 and admissions decisions took place on 3 March 2008 (the day before the hearing of this matter began on 4 March 2008). So, says Mr Oldham, even assuming (which, he says, would not be the case) that there was no remission to the Schools Adjudicator, no effective relief could be granted to E in time for the year 2008/09. So far as concerns the claims against JFS and the Appeal Panel, these, says Mr Oldham, are entirely historic, relating to the admissions policy adopted in January 2006 and a school year (2007/08) which is already more than half over. He suggests that the dispute is also academic because M is placed, and apparently settled, at another school where his mother is content that he remains. So, he says, no relief should be granted where the effects of relief could be very far reaching but are unlikely to be of any benefit to E or his son.
- Mr Lewis makes somewhat similar submissions in relation to the relief sought against the Schools Adjudicator.
- I need not in the circumstances explore these arguments in any detail. I propose to say only this. Nothing that Mr Oldham has said begins to persuade me that it would be right as a matter of discretion to refuse to grant E any declaratory relief to which he would otherwise be entitled, especially in relation to the important issues concerned with the legality and validity of JFS's admissions policy. On the other hand, and very much for the reasons essayed by Mr Oldham and Mr Lewis, very careful thought would have needed to be given to the question of whether it would have been appropriate to grant any other kind of relief against either JFS (or the Appeal Panel) or, more particularly, the Schools Adjudicator. However, the point does not arise so I say no more about it.
Other defences sections 53 and 57
- There was debate before me as to whether the effect of section 57 of the 1976 Act is to preclude pursuit of the claims under Part III of the Act by way of judicial review, the suggestion being that they can be pursued, if at all, only in the County Court.
- I was referred to two authorities, both at first instance, which are, unhappily, in conflict. The first in time is the decision of Jowitt J in R v Bradford Metropolitan Borough Council ex p Sikander Ali [1994] ELR 299, who held that section 53 does not preclude an application for judicial review. At pages 315-316 he considered the inter-relationship between sections 53(2) and 57(2) and accepted counsel's submissions that the effect of section 53(2) was to take judicial review out of the scope of the restriction imposed by section 53(1) and that the "civil proceedings" referred to in section 57 are different.
- The later authority is the decision of Wilkie J in R (R and others) v Leeds City Council/Education Leeds [2005] EWHC 2495 (Admin), [2006] ELR 25, in which Wilkie J seems, unfortunately, not to have been referred to Jowitt J's earlier decision. The claim for judicial review failed on other grounds and Wilkie J dealt with the present point very briefly, merely observing (at para [48]) that in his judgment the defendant's contention that the claims under the 1976 Act were misconceived, because such claims must be issued in the County Court and that the Administrative Court does not have jurisdiction to hear such claims, was correct.
- I agree with Jowitt J, and for the reasons he gave, that section 53 does not preclude an application for judicial review. I cannot, with all respect to him, agree with Wilkie J's different view a view, I should emphasise, which he seems to have come to without having had as much assistance from counsel as one might have hoped for. Be that as it may, I conclude that there is nothing in section 53 (or, for that matter, elsewhere in the 1976 Act) to prevent the Administrative Court hearing applications for judicial review of the kind that are here before me.
Conclusion
- For all these reasons, as I have said, and with only one exception, each of E's various grounds of complaint fails. Accordingly, with that one exception, both of his claims for judicial review must be dismissed. The one exception is the claim against JFS based on alleged breach of section 71 of the 1976 Act, where E has established his right to declaratory relief.
- I invite counsel to agree appropriate forms of order to give effect to my decision in relation to the two claims.
Appendix A the intervention of the BHA
- In essence the BHA contends that JFS's admissions policy breaches Article 14 of the Convention read in conjunction with Article 2 of Protocol 1. As Mr Singh points out, that is no part of E's case indeed, as we have seen, E does not rely upon the Convention at all.
- Mr Oldham makes the same point, but rather more forcefully. He questions why the BHA should seek to intervene in these proceedings, or how its intervention assists. Its case, as he points out, is completely at odds with E's case. The BHA decries both racial and religious discrimination whilst E, in contrast, has no quarrel with religious discrimination: on the contrary he wants M to go to a Jewish school, whereas if the BHA had its way there would be no such schools, indeed no faith schools of any kind at all.
- Mr Oldham makes three submissions in relation to the BHA's case:
i) First, and in this respect he submits that the BHA falls into the same error as E, it assumes that religious status must depend on belief and observance. This, he says, is wrong.
ii) Secondly, as he points out, the BHA's case relies entirely upon Article 2 of Protocol 1 to and Article 14 of the Convention, yet it is trite, as he says, that all Article 2 establishes is a right to attend a school providing a minimum form of education provided by the state. It does not give a right to attend any particular type of school, let alone a particular school: see A v Head Teacher and Governors of Lord Grey School [2006] UKHL 14, [2006] 2 AC 363, and R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100. So there is, he says, not the beginnings of a case of infringement of E's or M's rights under the Convention not that that of course is any part of E's own case because M can still be educated at some school other than JFS.
iii) Thirdly, he says that JFS takes exception to the attempted analogy an abusive and deeply offensive analogy with a white supremacist church in South Africa. This, he says, is a measure of just how misplaced the BHA's contentions are.
- I do not propose to go any further into the BHA's case or to analyse Mr Wolfe's interesting arguments. Insofar as the BHA is attempting to run a case based on the Convention, it is no part of E's case. And in the circumstances there is no sufficient justification or public interest in permitting the BHA to intervene simply so that it can mount some case of its own which is largely divorced from the facts of the particular case that is before the court and which in many ways cuts across it. Insofar as Mr Wolfe's arguments supplement and support points being taken by Mr Oldham, Mr Jaffey or Mr Singh, they do not sufficiently add to the debate to justify more extensive consideration, grateful though I am to Mr Wolfe for his submissions.
- I add only this. The Secretary of State, through Mr Singh, contends that faith schools do not, as such, breach the Convention and are, indeed, one way of complying with the State's obligations pursuant to Article 2 of Protocol 1 to respect parents' right to have their children educated in conformity with their religious convictions. I agree. Indeed, it would be most unfortunate if the contrary view was to gain any credence or currency. Nothing in Mr Wolfe's arguments begins to persuade me that there is, at the end of the day, any substance in the BHA's reliance in this context upon the Convention.
Appendix B The Nuremberg Laws
- On the afternoon of the fourth (and final) day of the hearing reference was made to Nazi Germany's infamous Nuremberg Laws. Ms Rose suggested in the course of her reply that on the Secretary of State's approach the Nuremberg Laws would not have involved racial discrimination, for the Nuremberg Laws, it was said, identified and discriminated against Jews on the basis of their descent. Not surprisingly, in the circumstances, Mr Singh indicated that if this suggestion was going to be pursued he would wish to answer it. No text of the relevant provisions of the Nuremberg Laws being to hand, I said that if the matter was going to be pursued then it would have to be dealt with in written submissions.
- Following the hearing I have been supplied with agreed translations of what are said to be the relevant provisions of the Nuremberg Laws:
i) the Reich Citizenship Law of 15 September 1935;
ii) the Law for the Protection of German Blood and German Honour also of 15 September 1935; and
iii) the First Supplementary Decree of 14 November 1935.
I have also received written submissions from Ms Rose dated 27 March 2008, from Mr Singh dated 7 April 2008 and from Mr Oldham also dated 7 April 2008 and a letter from the United Synagogue's solicitors dated 8 April 2008 (each of the latter expressing their agreement with Mr Singh's submissions).
- I confess to some distaste (some, and I can understand why, may think this an inappropriately moderate word) at having to address arguments about 'laws' which are so universally recognised as having been so wicked and immoral that some would deny them recognition as law altogether (see the famous debate between Hart and Fuller and Hart's subsequent discussion in the Concept of Law) whilst others would suggest that they are 'laws' which on grounds of public policy the law of this country should not recognise (see, for example, Oppenheimer v Cattermole (Inspector of Taxes) [1972] Ch 585, [1973] Ch 264, [1976] AC 249). There is something very offensive about an English judge in 2008 being required to parse the Nuremberg Laws alongside the 1976 Act, as if they are fit to be discussed in the same breath and using the same forensic techniques.
- Since I do not in any event find the arguments based on the Nuremberg Laws to be of the slightest assistance in resolving any of the issues before me, I can be reasonably brief. First, however, I should set out Ms Rose's submission:
"The Nuremberg Laws provide a disturbing and important illustration of the point that no proper distinction can or should be drawn between the three concepts identified by the Secretary of State" that is, discrimination on the grounds of Jewish ethnic origins, discrimination on the grounds of Jewish status and discrimination on the grounds of Jewish descent "Discrimination against a person (or in their favour) on grounds of their Jewish status, Jewish ethnic origins or Jewish descent constitutes direct race discrimination: the three concepts are closely intertwined and overlapping, and are not capable of being distinguished on any principled basis which accords with the normal use of language, or with public policy."
- As is well known the Nuremberg Laws imposed numerous discriminatory provisions on the Jews of Germany. Article 2(3) of the Reich Citizenship Law provided that "The Reich citizen is the sole bearer of full political rights in accordance with the Law." Article 4(1) of the First Supplementary Decree provided that "A Jew cannot be a citizen of the Reich. He cannot exercise the right to vote; he cannot hold public office." Article 1 of the Law for the Protection of German Blood and German Honour prohibited marriage between Jews and others, Article 2 prohibited extramarital intercourse between Jews and others and Article 3 prohibited the employment by Jews in their households of female Germans under the age of 45. Later, of course, as is notorious, the range of discriminatory provisions became vastly extended monstrous discrimination in public and private life developed into expropriation and plunder on a vast scale and, ultimately, into planned genocidal killings undertaken by methods and on a scale which even today stand as a unique example of human wickedness.
- The foundation of Ms Rose's argument is the fact that Article 5 of the First Supplementary Decree (which provided the basic definition of a Jew for the purposes of the Nuremberg Laws) defined a Jew as follows:
"(1) A Jew is an individual who is descended from at least three grandparents who were, racially, full Jews
(2) A Jew is also an individual who is descended from two full-Jewish grandparents if: (a) he was a member of the Jewish religious community when this law was issued, or joined the community later; (b) when the law was issued, he was married to a person who was a Jew, or was subsequently married to a Jew; (c) he is the issue from a marriage with a Jew, in the sense of Section 1, which was contracted after the coming into effect of the Law for the Protection of German Blood and Honour of September 15, 1935; (d) he is the issue of an extramarital relationship with a Jew, in the sense of Section 1, and was born out of wedlock after July 31, 1936."
Article 2(2) analogously defined those whom the Nazis referred to as Mischlings as follows:
"An individual of mixed Jewish blood is one who is descended from one or two grandparents who, racially, were full Jews, insofar that he is not a Jew according to Section 2 of Article 5. Full-blooded Jewish grandparents are those who belonged to the Jewish religious community."
So, says Ms Rose, the Nuremberg laws defined Jews primarily on the basis of their descent from Jewish grandparents.
- Now this is true so far as it goes, but it fails to give full weight to the fact that, in the final analysis, a person was treated as being a Jew if he or his grandparents was "a member of" (Article 5(2)(a) of the First Supplementary Decree) or "belonged to" (Article 2(2)) "the Jewish religious community." In other words, in the final analysis the decisive criterion was religion. Ms Rose herself recognises this, up to a point, when she concedes that the Nazi definition depended on a combination of descent and religious status, Jews being, as she put it, primarily identified on the basis of descent from grandparents with a particular religious status (belonging to the Jewish religious community) though also being identified on the basis of conversion.
- Moreover, and this is really the reason why, with all respect to Ms Rose, the attempt to bolster the argument in the present case by reference to the Nuremberg Laws is essentially unsound, it gives, as it seems to me, a seriously distorted view of the fundamentally and explicitly racial basis of the Nuremberg Laws.
- The preamble to the Law for the Protection of German Blood and German Honour could not be clearer. (Indeed, the very title of the Law could hardly be plainer in its connotations.) The preamble refers to the "understanding" of the Reichstag that "purity of the German Blood is the essential condition for the continued existence of the German people". Article 2(1) of the Reich Citizenship Law defined a "Reich citizen" as being "a subject of the State who is of German or related blood". Articles 1, 2 and 3 of the Law for the Protection of German Blood and German were each framed in terms of the distinction between "Jews" and "subjects of the state of German or related blood" thus, for example, Article 1(1) provided that "Marriages between Jews and subjects of the state of German or related blood are forbidden."
- As Mr Oldham correctly says, in Nazi discourse the term "Jew" was racial, the 'principles' underlying the Nuremberg Laws were based, as all three I have referred to show, on concepts of race and blood, and the reason for the formulation of the Nazi concept of a Jew was racist.
- As Mr Singh submits, the Nuremberg Laws what he rightly calls these truly abhorrent laws plainly constituted treatment "on racial grounds." As he rightly says, and as the Nuremberg Laws themselves made clear, the Nazis were concerned with maintaining what they regarded as the purity of "Aryan blood." For the Nazis their purpose was to discriminate ultimately to kill on grounds of "blood".
- If one has to frame the question in terms of the relevant English legislation and this is the assumption upon which this whole issue turns then, as Mr Singh points out, the ulterior purpose of motive of the discriminator may be highly relevant. Although, as we have seen, a benign purpose or motive will not prevent an act which is otherwise discriminatory on racial grounds from being unlawful, the existence of a malign purpose or motive may in some cases, as he correctly submits, provide a very easy answer to the "reason why" question. As he correctly observes, the important fact is that for the Nazis their purpose was to discriminate on grounds of "blood", and the precise way in which they defined who was "Jewish" is not critical for determining that they acted "on racial grounds." It is, as he says, quite obvious that the "reason why" of their conduct was their perverted views of racial purity.
- The simple fact, as modern historians and commentators recognise, is that the definition of a Jew for the purposes of the Nuremberg Laws was intellectually incoherent. In fact this incoherence is apparent on the face of the First Supplementary Decree, for Article 2 defines those whom it describes as "racially
full Jews" and "full-blooded Jew[s]" by reference to their "belong[ing] to the Jewish religious community" (emphasis added).
- As was observed by Ingo Mόller in Hitler's Justice: The Courts of the Third Reich (1991) at page 98:
"The first attempt to give a precise definition of the "chief enemy" of the Third Reich" this is a reference to the First Supplementary Decree "revealed the totally pseudoscientific nature of its racist doctrines and the charlatanism of the "scientists" associated with them. The definition also exposed the hollowness of the constantly reiterated claim that race as such was "not a political, but rather a biological concept.""
Referring to the definition in Article 5(2) of the First Supplementary Decree the author continues:
"Thus, racial categorisation depended in such cases on the religion one practiced or on one's spouse; but the situation became even more confused if the "crossbreed" also happened to be a foreigner
In such instances, race was determined not by religion but by nationality.
In general, the whole question of racial categorization was beset with insoluble contradictions
Commentaries on the race laws appealed to readers to remember that there should be "no confusion of the concepts of race and religion! Only the race of the grandparents is decisive!" However, this failed to alter the fact that the wording of the law itself unmistakably declared religion
as the crucial factor."
- Raul Hilberg in The Destruction of the European Jews (Student Edition, 1985) makes much the same point at page 36, observing that "there is nothing "racial" in the basic design of the definition" and referring to "a few very curious cases in which a person with four German grandparents was classified as a Jew because he belonged to the Jewish religion."
- I have said enough to show, I hope, why, as I have said, I do not find the arguments based on the Nuremberg Laws to be of the slightest assistance in resolving any of the issues before me.
