Bindmans and Blackstone win Supreme Court victory in Jewish school case
The Supreme Court has upheld a Court of Appeal ruling that it was illegal for a Jewish school to refuse entry to a boy because his mother was not recognised as Jewish by the Office of the Chief Rabbi.
Dinah Rose QC
Blackstone Chambers’ Dinah Rose QC was instructed by Bindmans partner John Halford to represent E, the father of a 12-year-old boy known as M, in his attempt to have his son admitted to the Brent-based JFS school.
The school had an oversubscription policy that gave priority to children it deemed Jewish by birth. The boy was refused entry because his mother had converted to Judaism rather than being born into the faith.
Rose argued that the policy contravened the Race Relations Act.
In June, a Court of Appeal panel of three chaired by Lord Justice Sedley ruled: “The requirement that if a pupil is to qualify for admission his mother must be Jewish, whether by descent or by conversion, is a test of ethnicity which contravenes the Race Relations Act 1976. If the discrimination is direct, as we consider it is, it cannot be justified.”
The Supreme Court gathered nine Supreme Court Justices to hear the case. The case centred on whether the oversubscription criterion constituted direct discrimination on grounds of M’s ethnic origin or indirect discrimination which was not proportionate and so not objectively justified.
The court was split on the matter five to four.
Supreme Court president Lord Phillips and Supreme Court Justices Lady Hale, Lord Mance, Lord Kerr and Lord Clarke found that the school directly discriminated on racial grounds against child M and others like him.
Lord Phillips said: “The majority of the court has concluded that the JFS admission policy does discriminate on the grounds of ethnic origin and is, in consequence, unlawful.”
Nevertheless, it was stressed that the school was not acting in a racist manner. Lady Hale SCJ highlighted: “No one in this case is accusing JFS (as the Jews’ Free School is now named) or the Office of the Chief Rabbi of discrimination on grounds of race as such.
“Any suggestion or implication that they are “racist” in the popular sense of that term can be dismissed.”
Lords Hope, Rodger, Walker and Brown were dissenting with Lord Rodger and Brown stating that they would have allowed the appeal by JFS in its entirety.
Stone King Sewell partner Richard Gold instructed Blackstone Chambers’ David Pannick QC for the appellant, JFS. Blackstone’s Ben Jaffey was instructed by Farrer & Co partner Anne-Marie Piper to act for the co appellant, the United Synagogue.
In the Court of Appeal Pannick had represented the United Synagogue with 11KBW’s Peter Oldham representing the governing body of JFS.
One Essex Court’s David Wolfson QC was instructed by Teacher Stern Selby to act for the Board of Deputies of British Jews as an intervener. Also appearing as interveners were: Cloisters’ Robin Allen QC instructed by the Equality and Human Rights Commission; Matrix Chambers’ David Wolfe instructed by Leigh Day & Co partner Richard Stein for the British Humanist Association; and Thomas Linden QC also of Matrix Chambers was instructed to act by the Treasury Solicitors for the secretary of state for children, families and schools.
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Readers' comments (11)
Freddie_Turnill | 20-Dec-2009 2:46 pm
"his mother had converted to Judaism rather than being born into the faith" You are born into an ethnic/racial group but not born into a faith.
Those who subscribe to Judaism in either it's religious form or it's secular one seem to be able to be able to switch alternately from faith one time then swap over at another and have identity as an ethnic group. (I recall the prosecution of Lady Birdwood in the early 90's under the Race Relations Act which concerned her publications critical of Jewry.)
I find it difficult to comprehend a "faith" school where you have to have the correct ethnicity for both parents except where ethnicity is the key component and faith is deeply associated with that ethnicity.
This is similar to Christianity being historically been deeply rooted among European nationalities since late Roman times.
Though Christianity has become more and more a universalistic belief, as the belief in its European heartlands eroded, (and for many, Christianity "died") a secular identity was retained for the rituals of the rites of passage.
This is the opposite of what has happened to Judaism, where, whilst many Jews became secular, there was no shift to the conversion of outsiders either in an Ethnic or religious sense. If anything the sense of a separate identity has become more intense with the Holocaust providing a rallying point of that shared identity and separateness.
Personally I cannot see how anyone can defend an exclusivity of ethnic identity in schools admissions policy for a "faith" school when the BNP has had to change it's criteria for admission for entitlement to qualification of membership by deleting it's British Ethnic exclusivity clauses as this attracted the Equalities Commission to pursue a court case against them as that clause was considered discriminatory on the grounds of race.
Whether you agree or not with the State being able to dictate the membership of private organisations is one thing, you can be against that in principle, but you can't (or shouldn't be able to) pick and choose as to whether the law applies to you or not by virtue of the one having more power, influence, status or reputation than the other.
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