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.