One Crown Office Row

R (on the application of E) (Respondent) v (1) JFS Governing Body (2) Admissions Panel of JFS (Appellants) : R (on the application of E) (Respondent) v (1) JFS Governing Body (2) Admissions Panel of JFS (Appellants) & ORS (United Synagogue

[2009] UKSC 15

[2009] UKSC1

Rosalind English

16 January 1010, December 2009

[2009] UKSC 15

SC (Lord Phillips (President), Lord Hope (Deputy President), Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Kerr, Lord Clarke) December 16 2009

ABSTRACT

A school for Orthodox Jews which tested applicants for matrilineal descent was acting on the basis of ethnic origin, meaning that their admission requirement constituted direct racial discrimination.

SUMMARY

The facts of this case are set out in the report of the decision by the court below ((2009) EWCA Civ 626, (2009) 4 All ER 375). The Court of Appeal decided there that the appellant school’s admissions policy had directly racially discriminated against the son of the respondent father, contrary to the Race Relations Act 1976 s.1 (RRA). The father was Jewish by descent and his wife had converted to Judaism through a non-orthodox synagogue. The school's admissions policy was to give preference to children whose status as Jews was recognised by the Office of the Chief Rabbi (OCR), which represented orthodox Jews. The OCR required that the child's mother be Jewish either by matrilineal descent or by conversion under orthodox auspices, or that the child had converted. The mother's conversion was not recognised by the OCR, and the son had not undertaken to convert to orthodox Judaism, and so he was refused admission. The respondent’s dissatisfaction was not with the policy of the school in giving preference in admission to Jews, but with the application of Orthodox standards of conversion which led to the OCR declining to recognize the son as a Jew. The father failed in his claim for judicial review of the school's decision but his appeal was successful. The school argued that the matrilineal test was based on religious law and the discrimination the school had applied based on the test was religious discrimination, not racial discrimination under s.1 RRA; they also contended that although there was a Jewish ethnic group as defined by the criteria set out in Mandla (Sewa Singh) v Dowell Lee (1983) 2 AC 548 HL, the matrilineal test described a group that overlapped with, but was not identical to, the ethnic group.

Held: Appeal dismissed (Lords Hope, Rodger, Walker, and Brown dissenting)
.

The argument that the matrilineal test derived from religious law, and what had motivated the school was compliance with that law, was invalid. The motive of the discriminator for applying the discriminatory criteria was irrelevant. A person who discriminated on the ground of race, as defined by the Act, could not pray in aid the fact that the ground of discrimination was one mandated by religion (R v Birmingham City Council Ex p Equal Opportunities Commission (No1) (1989) AC 1155 HL and James v Eastleigh BC (1990) 2 AC 751 HL). The definition of racial grounds in section 3 RRA Act included ethnic or national origins. Origins required a focus on descent. Descent would be a ground if the descent in question was one which traced racial or ethnic origin. There was a difficulty in distinguishing between ethnic and religious status. A woman converting to Judaism acquired both Jewish religious status and Jewish ethnic status within the Mandla definition. The religious test of matrilineal descent did not apply a criterion unconnected to race. It focused on the race or ethnicity of the woman from whom the individual was descended: where a Jew was descended from a woman who had converted to Judaism, the matrilineal link was with an ethnic Jew. Furthermore, the test was not restricted to descent from Jews by conversion. The origin to which the line led could be racial and was, in any event, ethnic. It was clear that the matrilineal test was one of ethnic origin. By definition, discrimination based on that test was discrimination on racial grounds under the Act. It was correct to say that there were two groups with an overlapping membership: those who were descended matrilineally from a Jew, and those who were currently members of the Mandla defined Jewish ethnic group. Discrimination against a person on the grounds that he or she was, or was not, a member of either group was racial discrimination. The school had discriminated on the basis of genetic descent by the maternal line from a woman who was Jewish, and that was therefore direct racial discrimination.

(Per Lord Hope, dissenting) The crucial question was not whether the son was a member of a separate ethnic group from those advantaged by the school's admissions policy, but whether he had been treated differently on grounds of that ethnicity. Although a discriminator's motive in treating a person less favourably on racial grounds did not negative racial discrimination, the question of motivation could be relevant to the question of whether the discrimination had been on racial grounds. The school's motivation had been on religious, not racial, grounds.

COMMENT (January 2010)

In contrast to many other countries, there is no defence of justification to the English prohibition on direct racial discrimination. So the motive of the discriminator is to all intents and purposes irrelevant. This effectively put paid to the arguments advanced by the School and the OCR, that the reason why they apply the test for determining who is a Jew is because of what is laid down by Orthodox religious law. So what subjectively motivates them is compliance with this religious law, not the ethnicity of the candidates who wish to enter the school. But these motives are no more to the point than the motives of the council that charged a husband for admission to their pool while letting his wife in free; this discrepancy arose out of the discriminatory pensionable age provisions and therefore the council’s entire innocent motives – of allowing people of pensionable age free admission – had a discriminatory basis (James v Eastleigh Borough Council [1990] 2 AC 751.

In the instant case the religious edicts relating to conversion – to be found in Deuteronomy – plainly, in Lord Philips’ words, focus on race. The passage may have its place in a religious text but its subject is racial:
“…the Hittites, the Girgashites, and the Amorites, and the Canaanites, and the Girgashites, and the Amorites, and the Canaanites, and the Perizzites, and the Hivites, and the Jebusites…thou shalt smite them, and utterly destroy them; thou shalt make no covenant with them….Neither shalt thou make marriages with them; thy daughter thou shalt not give unto his son, nor his daughter shalt thou take unto thy son.” (Deut. Chapter 7)

If the admissions policy had involved indirect discrimination as Mumby J had agreed it did at first instance, then it would have been open to the school to argue that it was a proportionate means to a legitimate end – preserving Orthodox education. At that stage the school had successfully argued that it were to remain a school for Orthodox Jews it had to retain its existing admissions policy and therefore that policy was proportionate.

The difficulties in which the school ensnared itself illustrate the confusion created by the distinction, created by anti-discrimination legislation, between discriminating on the basis of religion (which is justifiable) and discriminating on the basis of ethnic origin or race (which is not). The school, in excluding the son, was enacting a policy which was based on religious precepts. But the impact it had on the son was because of his ethnicity. In situations such as there is no bright line between the one and the other. As Lord Kerr observes, the school’s policy was unimpeachable and justifiable. That is not to the point. There was direct discrimination under the Act, and therefore no justification could be advanced. “The breach of the legislation arises because of the breadth of its reach” (para 124).

In deciding whether to distinguish between direct and indirect discrimination in Section 1(1)(a) of the Act Parliament has created something of a logistical minefield. The close link between ethnicity (which falls within this subsection) and religion (which does not) makes it so. The question of the construction of this subsection has not arisen before this case but now the House of Lords has shone light on this intellectually woolly and untenable distinction, more litigation of this kind will inevitably follow.

This is not to suggest that confessional allegiance should be put on the same footing as ethnicity. As Christopher Hitchens has pointed out in his critique of U.N. Resolution 62/154, on "Combating defamation of religions, “If religion and race can be run together, then the condemnations that racism axiomatically attracts can be surreptitiously extended to religion, too.” http://www.slate.com/id/2212662/ This would lead to the clumsy but effective “bludgeoning” of choices, speech, and policy across the board, wherever they offended against a multiplicity of belief systems, without the opportunity to raise, as it is now possible to raise under the RRA, the important defences of justifiable aim and proportionality.

As Lord Hope, one of the dissenting judges, remarks, “The case does not fit easily into the legislative pattern. It [the Act] was designed to deal with obvious cases of discrimination on racial grounds”. (para 183). But – as we will no doubt discover in future months and years - this case is far from unique and the number of “non-obvious” cases of racial discrimination will be cluster at the courts’ gates. Why should litigants complaining of religious discrimination not attempt to shoehorn their claims into the stricter Section 1 of the RRA – after all if it is so difficult to separate ethnicity from religious grounds in this case, why should those difficulties not apply in many other areas of a modern multicultural society? Lord Fraser’s 1983 description of the conditions for the concept of ethnicity are arguably too broad to be workable in this context: “(1) a long shared history…(2) a cultural tradition”; …. “a distinct community by virtue of certain [essential and non-essential characteristics”(Mandla v Dowell Lee 2AC 548). Into that definition, a myriad of religious communities could seek to enter and in order to avail themselves of the protection from discrimination under the inflexible edicts of Section 1 RRA which allows of no questions of motivation or justification.

Instead of allowing the loose definition of ethnicity to expand the scope of direct discrimination and thereby place a whole spectrum of well-intentioned forms of preferential treatment beyond the reach of possible justification, the House of Lords in both the majority and minority judgments have effectively called for a more nuanced approach to the question; but this is a matter for Parliament, not the courts, and in the mean time where religious status is coexistent with ethnicity, schools and other bodies caught by the RRA need to tread very carefully indeed.

R (on the application of E) (Appellant) v (1) JFS Governing Body (2) Admissions Panel of JFS (Respondents) : & (1) Secretary of State for Education (2) Brent London Borough Council (3) Office of the Schools Adjudicator (Interested Parties) & United Synagogue (Intervener) : R (on the application of E) (Appellant) v Office of the Schools Adjudicator (Respondent) & (1) JFS Governing Body (2) Brent London Borough Council (3) David Lightman (4) Kate Lightman (Interested Parties) & (1) British Humanist Association (2) United Synagogue (Interveners)

[2009] EWCA Civ 626

CA (Civ Div) (Sedley LJ, Smith LJ, Rimer LJ) June 25 2009

ABSTRACT

The requirement that to qualify for admission to a Jewish school a pupil's mother had to be Jewish, whether by descent or by conversion, was a test of ethnicity rather than religion which contravened the Race Relations Act 1976.

SUMMARY

The appellant father appealed against the refusal of his applications for judicial review ((2008) EWHC 1535 (Admin)) (reported below) of decisions concerning the propriety and legality of the criteria governing admission to a Jewish school (J). The father was Jewish by birth and his wife was Jewish by conversion. They wished for their son to be admitted as a pupil to the respondent school. As the JFS was an oversubscribed school, it was entitled to select pupils according to its admissions policy, provided the policy was lawful. The present policy was to give priority to children who were recognised as Jewish by the Office of the Chief Rabbi (the OCR) or were following a course of conversion approved by the OCR. The OCR did not recognise the validity of the mother's conversion to Judaism because it was conducted in a progressive and not an orthodox synagogue. The son, who was not following a course of conversion, was accordingly not eligible for admission. Since a child was regarded by the OCR (and others) as Jewish only if his mother was Jewish, the son had been refused admission. The father's appeal against the school's decision was dismissed and his objection to the Office of the Schools Adjudicator was also rejected. He applied for judicial review of those decisions on the ground that the school's admissions policy discriminated on racial grounds against children who were not of Jewish origin or descent through the maternal line. The judge dismissed the father's claims, having found that the criterion of being Jewish by virtue of Jewish matrilineal descent was not one of ethnic origin, so that the school's decision not to admit a child who did not conform within Jewish orthodox law to the requirement of Jewish descent in the maternal line did not contravene the Race Relations Act 1976. It fell to be determined whether the JFS's oversubscription admission criteria were unlawfully discriminatory. The school contended that the criterion of choice was a religious and not a racial one: the OCR was concerned only to elaborate and apply the law of the Torah, and only those whom the Torah did not recognise as Jews were excluded. The father submitted that that approach elided the grounds of an act with its motive, whereas what the legislation was concerned with was not its motive but its causation, and a religious motive would not excuse discrimination on racial grounds. He argued that what the school's admission test required was that the mother had to be regarded by the OCR as Jewish if her was to secure admission to the school, and being Jewish, however it was ascertained, meant being a member of an ethnic group.

Held:

Appeal allowed. So long as a maintained faith school was undersubscribed, it could not use religious criteria to allocate places. Once it was oversubscribed, it could lawfully restrict entry to children whom, or whose parents, it regarded as sharing the school's faith. No school, however, was permitted to discriminate in its admissions policy on racial grounds. Refusal of admission was plainly less favourable treatment within the meaning of s.1(1)(a) of the Act. The question for determination, in a case such as M's, was whether that was done on racial, as opposed to religious, grounds. Whilst the theological origin and character of the OCR's definition of Jewishness was accepted, that was only the beginning and not the end of the court's inquiry. If an act of discrimination was done on racial grounds, its motive did not matter. The son had been refused admission to JFS because his mother, and therefore he, was not regarded as Jewish. The school had been perfectly open in giving that as the ground of non-admission. The theological reasons why the was not regarded as Jewish were not the ground of non-admission: they were the motive for adopting it. The refusal to admit the son because he was not regarded as matrilineally Jewish constituted discrimination on racial grounds, Mandla (Sewa Singh) v Dowell Lee (1983) 2 AC 548 HL applied. Jews constituted a racial group defined principally by ethnic origin and additionally by conversion, and to discriminate against a person on the ground that he or someone else either was or was not Jewish was therefore to discriminate against him on racial grounds. The theological motive for the discrimination, whether benign or malign, made it no less and no more unlawful. That did not mean that no Jewish faith school could ever give preference to Jewish children but that eligibility had to depend on faith, however defined, and not on ethnicity. the son's less favourable treatment amounted to direct discrimination on racial grounds for which the school was answerable.

R (on the application of E) (Claimant) v JFS Governing Body and Another

QBD (Admin) (Munby J) July 7 2008

ABSTRACT

The criterion of being Jewish by virtue of Jewish matrilineal descent was not one of ethnic origin and therefore the decision of a Jewish school not to admit a child who did not conform within Jewish orthodox laws to the requirements of Jewish descent in the maternal line did not contravene the Race Relations Act 1976. The Courts were bound by Article 9 of the Convention to refrain from determining such religious questions themselves.

SUMMARY

The parents challenged the school over its decision to reject their son. He was rejected on the basis that his mother was not born Jewish, but had been converted to Judaism by a progressive synagogue, and the school did not recognise the validity of conversions carried out by progressive synagogues. The extent of religious observance practised by a family was irrelevant to admission to the school, and indeed the school's interpretation of Jewish law on this point was backed by the Chief Rabbi. The parents' appeal against the school's decision was dismissed, and their objection to the Office of the Schools Adjudicator was also rejected.

The principal ground for the judicial review of the adjudicator's decision was that the school had racially discriminated against them and their son. The applicants were backed by the local authority, which has also called for the JFS to change its admissions policy, and by secular groups including the British Humanist Association.

The school maintained that its admissions policy was based on religion, not race, and therefore it did not breach race discrimination laws.

Held:

Application refused. The fact that someone was of a particular descent or had a particular status at birth did not mean that that was their ethnic origin. There was discrimination "on racial grounds" only if it was based on someone's Jewish ethnic origins and not if it occurred on grounds of Jewish status or Jewish descent. The argument that "Jewish descent" and "Jewish ethnicity" were coterminous broke down because it was based on a principle of Jewish religious law which identified and defined a Jewish status which was neither founded on nor creative of any distinctively Jewish ethnicity. The school's admissions policy was, as the adjudicator correctly found, based on religious and not racial or ethnic grounds, reflecting a religious and not an ethnic view as to who, in the eyes of the office and of the adjudicator, was or was not a Jew. Such analysis fitted with the distinction drawn in Seide v Gillette Industries (1980) IRLR 427 EAT between actions by or in relation to Jews based on religious grounds and actions by or in relation to Jews based on ethnic grounds. A dispute about what constituted a valid conversion was simply not a matter which engaged the Race Relations Act 1976 at all, Seide applied. There had been no direct race discrimination.

Nor had there been any indirect race discrimination. The applicants contended that the school's admission arrangements constituted a provision, criterion or practice which put individuals of certain races or ethnic origins at a disadvantage, within s.1(1A) of the 1976 Act. The question was whether its admission arrangements could be justified. Faith-based admission criteria generally pursued a legitimate aim. Government policy, endorsed by Parliament, was to allow faith schools to give priority in admission to those of their designated faith. Parliament must be taken to have regarded faith-based admission criteria as fulfilling a sufficiently weighty social or educational aim to permit their continuance. Article 1 Protocol 2 of the European Convention on Human Rights showed the legitimacy of such considerations. The school's core aim was to educate those whom, in common with the office, it considered to be Jews, irrespective of their observance, and in an ethos which was avowedly Orthodox Jewish. Their policy could comfortably be justified as being, within the meaning of s.1(1A)(c) of the 1976 Act, a "proportionate means of achieving a legitimate aim". Therefore there had been no indirect race discrimination.

It was held however that Section 71 of the 1976 Act was clearly engaged and insufficient consideration had been given to the duty to comply with that section. Proper compliance with s.71 required the school to 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. It had failed to comply in full with the requirements of s.71 and the applicant was entitled to a declaration to that effect. However the breach did not entitle him to any other relief, as even if the school had complied with s.71 it would not have led to a difference either in the crucial part of its admissions policy or in its application in his son's case.

COMMENT (July 2008)

This well-publicised case raises once again the question of the proper place of faith schools in a modern secular society. There is an important debate going on about faith schools' admissions policy, in particular as they intersect with related debates about immigration and multiculturalism in modern society. This Jewish Free Schools case has therefore rightly caught the eye of the media, and, as Jeremy Hyam predicts in his recent seminar on Religion and Education it seems likely that this type of judicial review challenge is going to be increasingly probed, explored and tested over the coming years.

No doubt there has been a mixed reaction to this judgement amongst school leaders, religious groups and secular groups. Those who, like the British Humanist Association, would like to see faith and education to be kept separate, are no doubt disappointed with the result. But by exposing this particular admissions policy to forensic scrutiny the litigation has at least called into question the policies of many of the faith schools across the country, most of which are in receipt of public funding, which is itself arguably a form of discrimination against pupils from non-religious families, in particular those who are not prepared to go through the charade of religious observance in order to obtain a place for their offspring in a local oversubscribed church school.

The circumstances of this challenge exclude any possible role for Article 9 – the school itself, being a quasi public authority, could not use the Convention as a shield. Mumby J does however refer to it in his judgment at para 107:

"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"

But apart from a general discussion of Article 9 in paras 110-115, confirming that it is not the courts' business to determine religious questions, there is no particular application of Article 9 to this case which instead turns on the proper application of the Race Relations Act. However the litigation is all the more interesting for that because it exposes the way the statutory regime exists to protect religious interests outside the realm of human rights law, and demonstrates the increasing willingness of Parliament to privilege belief by statutory interventions which have the effect of protecting religious observance.

The functioning of publicly-funded schools such as this is regulated by the Schools Standards and Framework Act 1998. JFS is a voluntary aided school, 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.

Under 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 1998 Act also 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.For the year 2008/09 the School Admissions Code is that published in February 2007; the previous Code was dated 2003. In the course of this litigation the school's admissions policy for 2007/08 was attacked for unlawfulness both under the 2003 code and under 2007 code. In fact, the 2007 School Admissions Code 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. 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."

As for the interaction between the education statutes and discrimination legislation, section 50 of the Equality Act 2006 immunises a school such as JFS from liability for religious discrimination under that Act. This is why the case proceeded along race discrimination lines, since Section 50 does not immunise such a school from any liability for racial discrimination it may have under the Race Relations Act 1976.

The Equality Act 2006 explicitly allows faith schools to be exempt from the UK's law against discrimination on grounds of religious belief, and is clearly designed to allow them freedom to determine admission criteria on the basis of religion (see Section 59). Why faith schools should be such a compelling case for an exemption from the principle of equality of access to education is a deeply controversial question. It is difficult to see a clear case for ensuring the continued imperative to educate the young in separate religious schools when all the statistics demonstrate the dramatic decline in religious belief in modern British society.

Both the government's Schools Admissions Codes have been generally controversial, with the spotlight particularly focused on faith schools admissions since they have much more freedom over their own arrangements and requirements. There were discussion in the consultations which predicted exactly the dilemma the school in question finds itself in; in other words, questions as to whether schools should be able to expressly exclude applicants from a particular social or religious group, or whether they can state that only applicants of a particular social or religious group will be considered - and whether they should be able to take account of factors associated with some religious beliefs such as the marital status of parents. The interpretation of the Codes is open to question in various respects.

But in the end the judge refused this case to be used as a forum for a general attack on faith based schools. He rejected the British Humanist Association's application to intervene, stating that their arguments, based on Article 2 Protocol 1 and Article 14 of the Convention, were irrelevant to the facts of the case. As a result an opportunity has been missed to thrash out the arguments that were being prepared regarding the legality of faith schools; the Secretary of State was prepared to contend 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. It would have been interesting to hear whether there was any force in the contrary view.

Rosalind English, 1 Crown Office Row

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