Such is the controversy of the case that the President of the Supreme Court, Lord Phillips of Worth Matravers, will chair a panel of nine Justices of the Supreme Court, who will determine its outcome. The list includes Lord Hope of Craighead, Lord Rodger of Earlsferry and Baroness Hale of Richmond.
At stake is the basis on which a significant number of faith schools admit pupils. In July, the Court of Appeal ruled that the Brent-based school, JFS, must radically change its admission policy because it breached race discrimination laws.
The case was brought by the family of a 12-year-old boy who had been refused entry to the school because his mother’s non-orthodox conversion to Judaism was not recognised by the Office of the Chief Rabbi.
Traditionally the school admitted pupils who were defined as Jewish by Orthodox Jewish law. Essentially only the children of Jewish mothers could be admitted.
Acting on behalf of JFS’s governing body and admissions panel, 11KBW’s Peter Oldham argued that the entry policy complied with Jewish law and therefore was an issue of religion: under the law, religious schools can give priority to pupils on religious grounds.
But appeal judges Lord Justice Sedley, Lady Justice Smith and Lord Justice Rimer disagreed and 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 judges added: “No faith school is immune from the prohibition on race discrimination.”
The judgment caused an outcry, with Chief Rabbi Jonathan Sacks saying it effectively branded Judaism as racist.
Rabbi Yitzchak Schochet of the Rabbinial Council of the United Synagogue said it went too far in attempting to define what it means to be an orthodox Jew. It is not for a court to decide, he argued.
Matrix Chambers’ Tom Lindon QC has been instructed by the Treasury Solicitor to represent the Secretary of State for Education, which is concerned that the Court of Appeal’s decision “may have wide ramifications for schools which give preference to members of certain faiths over others”.
It too is calling for the Supreme Court to reverse the appellate court ruling.
If the Supreme Court upholds the judgment, however, Jewish community leaders are considering proposing an amendment to the Equality Bill, which is currently finding its way, very slowly, through Parliament.
Increasingly the courts are being called upon to decide what is meant by discrimination. Employment lawyers believe this will only spiral further when the Equality Bill reaches fruition.
Race discrimination is a highly sensitive area of law, particularly when it comes to religion. The decision to appoint nine Justices of the Supreme Court to hear the JFS case shows just how serious the outcome could be.
For a full list of counsel on the case click here.