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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> E v The Governing Body of JFS & Anor [2008] EWHC 1535 (Admin) (03 July 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/1535.html Cite as: [2008] ACD 87, [2008] EWHC 1535, [2008] EWHC 1536, [2008] EWHC 1536 (Admin), [2008] ELR 445, [2008] EWHC 1535 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| R (E) |
Claimant |
|
| - and - |
||
| THE GOVERNING BODY OF JFS THE ADMISSIONS PANEL OF JFS |
Defendants |
|
| - and - |
||
THE SECRETARY OF STATE FOR CHILDREN, FAMILIES AND SCHOOLS![]() THE LONDON BOROUGH OF BRENT OFFICE OF THE SCHOOLS ADJUDICATOR |
Interested Parties |
|
| - and - |
||
| THE UNITED SYNAGOGUE |
Intervener |
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
| R (E) |
Claimant |
|
| - and - |
||
OFFICE OF THE SCHOOLS ADJUDICATOR |
Defendant |
|
| - and - |
||
| (1) THE GOVERNING BODY OF JFS (2) LONDON BOROUGH OF BRENT (3) Mrs L (4) Mr L |
Interested Parties |
|
| - and - |
||
| THE BRITISH HUMANIST ASSOCIATION THE UNITED SYNAGOGUE |
Interveners |
____________________
Mr Peter Oldham (instructed by Stone King LLP) for the Governing Body of JFS and the Admissions Panel of JFS
Mr Rabinder Singh QC and Mr Dan Squires (instructed by the Treasury Solicitor) for the Secretary of State
Mr Ben Jaffey (instructed by Farrer & Co) for The United Synagogue
Mr David Wolfe (instructed by Leigh Day & Co) for the British Humanist Association
Mr Clive Lewis QC (instructed by the Treasury Solicitor) for The
Schools
' Adjudicator filed written submissions but did not attend
Mr L was present in person but made no submissions
The other Interested Parties did not attend and were not represented
Hearing dates: 4-7 March 2008
(further written submissions lodged on 27 March 2008, 7 and 8 April 2008)
____________________
Crown Copyright ©
Mr Justice Munby :
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
Jewish
community and the
Jewish
faith, before turning to the events which have given rise to the proceedings.
Jewish
or any other community.
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
Jewish
community.
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
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 ofJewish
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."
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.
The factual background:
Jewish
law and belief Orthodox Judaism
"There is a fundamental divide between the OrthodoxJewish
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."
Jewish
faith and to follow
Jewish
law." Dayan Gelley elaborates the point:
"Education about theJewish
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."
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.)
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.
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
.
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.
"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 OrthodoxJewish
faith in its entirety at the moment of conversion.
Indeed, it is a well established point ofJewish
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)".
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 toJewish
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 ofJewish
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
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."
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.
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."
"When it comes to matters ofJewish
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 ofJewish
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 reputableJewish
authority throughout the world whereas they are much more restrictive."
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
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 theSchool
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."
"Statement ofSchool
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. TheSchool
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."
Jewish
Dimension':
"The outlook and practice of theSchool
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 "
School
Community' as follows:
"JFS is a Voluntary Aided ComprehensiveSchool
for
Jewish
students whose range of religious affiliation within the
Jewish
faith is very wide "
Under paragraph 1.2(b) it is said that:
"TheSchool
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 theSchool
, 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 aJewish school
's right to give preference in admissions to
Jewish
students."
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".
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 theSchool
, 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
"1.1 It is JFS ("theSchool
") 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 theSchool
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.
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 theJewish
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
The factual background: the families E's son, M
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.
Jewish
.
The factual background: the families the L family
Jewish
law prohibits a marriage between a cohen and a convert."
"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 theJewish
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."
"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 toJewish
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 OrthodoxJewish
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."
Jewish
." The letter from JFS to Mr and Mrs L said:
"Given this information, in relation to theSchool
'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'sJewish
status they should be addressed directly to [the OCR]."
Jewish
."
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 myJewish
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."
"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 activeJewish
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 asJewish
by the Beth Din and when [our daughter] is given a place at JFS."
The factual background: the families the S family
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.
"Regrettably, given the details of your conversion with particular regard to the level of commitment and observance to OrthodoxJewish
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 HalachikJewish
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.
Jewish
."
"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 OrthodoxJewish
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 inJewish
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 ofJewish
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."
"We decided not to take the matter further I still feel that it is ridiculous that I and my children are recognised asJewish
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."
" 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
Jewish
status.
The history of the dispute: JFS
Jewish
faith and a member of our synagogue."
"because theSchool
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
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.
"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."
school
.
The history of the dispute: the
Schools
Adjudicator
Schools
Adjudicator concerning JFS's admissions policy for the year 2007/08.
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.
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.
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
The proceedings: the first application for judicial review
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 ofJewish
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.
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 ethnicJewish
descent through the maternal line;
c) it fails to take into account the requirements of theSchool
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.
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
Schools
Adjudicator on 27 November 2007 determining E's objection.
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).
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 hearing
Schools
Adjudicator but understandably and appropriately in the circumstances had not been instructed to attend.
The hearing: the views of M's mother
"The High Court is not the place to discussJewish
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.
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 wider context: the views of JFS and the United Synagogue
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.
"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.
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.
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.
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.
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.
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
Jewish
community are concerned about JFS's policy.
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".
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 theJewish
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 theJewish
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
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.
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.
The legal context
The legal context: the role of the court
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.
The legal context: the European Convention
"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."
"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."
"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."
"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."
"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."
"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
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 theSchool
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
i) voluntary aided
schools
;
ii) racial discrimination.
The legal framework: voluntary aided
schools
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.
school
's instrument of government when exercising its functions.
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.
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.
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.
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
The legal framework: racial discrimination the statutory provisions
"(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.
"(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."
"(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."
"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."
"(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 "
"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.
"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."
"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) aschool
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
.
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
"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; "
The law what is "ethnic origin"?
"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."
"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."
"[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."
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.
Objections to the admissions policy: direct race discrimination
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.
Jewish
by virtue of
Jewish
matrilineal descent one of ethnic origin?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Objections to the admissions policy: indirect race discrimination
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"?
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.
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.
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.
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.
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.
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.
school
generally. What of the aims of JFS? What are they? Are they legitimate? And do they meet a real need?
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.
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
.
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.
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.
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).
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.
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.
school
. The
Schools
Adjudicator did not agree, Nor do I.
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.
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.
Objections to the admissions policy: breach of section 71
"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."
"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."
Objections to the admissions policy: failure to reflect JFS's designated religious character
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
".
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.
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.
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.
Jewish
status of pupils. On the contrary, as she points out, the instrument of government refers to the "guidance" of the Chief Rabbi.
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 maintainedschool
shall, in discharging their functions, comply with
(a) the instrument of government."
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 aschool
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.
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
.
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.
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
.
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.
Objections to the admissions policy: sub-delegation to the OCR / fettering of discretion
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.
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.
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.
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."
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.)
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.
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).
"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.
Objections to the admissions policy: breach of the
School
Admissions Code
"In drawing up their admission arrangements, admission authorities must ensure that the practices and the criteria used to decide the allocation ofschool
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 theschools
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 otherschool
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 aschool
and criteria which focus on parents cannot legitimately be included as oversubscription criteria."
Paragraph 1.76 (which is headed 'faith
schools
') provides that:
"At faithschools
, 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 maintainedschools
must not:
e) give priority to children according to the background of their parents; "
schools
'. Paragraph 2.41 provides that:
"It is unlawful under section 49 of the Equality Act 2006 for maintained, nonmaintained or independentschools
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 faithschools
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 ofschools
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 faithschools
should consider how their particular admission arrangements impact on the communities in which they are physically based and those faith communities which they serve."
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.
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.
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.
Objections to the admissions policy: admission criteria unclear and unfair in relation to conversion
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."
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.)
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.
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.
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.
Objections to the Appeal Panel's conduct: misdirection as to jurisdiction
"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.
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.
School
Admissions Code.
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 theSchools
Adjudicator or the Secretary of State to consider separately."
Objections to the Appeal Panel's conduct: procedural unfairness
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.
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.
Summary
Other defences
Other defences delay etc
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.
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.
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.
Schools
Adjudicator.
Schools
Adjudicator. However, the point does not arise so I say no more about it.
Other defences sections 53 and 57
Conclusion
Appendix A the intervention of the BHA
Jewish school
, whereas if the BHA had its way there would be no such
schools
, indeed no faith
schools
of any kind at all.
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.
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
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).
"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 ofJewish
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."
"(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 mixedJewish
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.
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.
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.
Jewish
religious community" (emphasis added).
"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."
Jewish religion."