Case Comment: R (E) v Governing Body of JFS & Ors  UKSC 15
21 Monday Dec 2009
On 16 December judgment was handed down in the widely reported JFS case. The appeal itself was heard by the Supreme Court sitting as a nine judge court, reflecting the importance of the issues raised by the appeal. The judgments are ordered not by the seniority of the justices delivering them but by publication of those judgments in the majority first, followed by those in the minority. The bulk of this piece is devoted to the principal issue in the case but at the end of this blog post I deal, shortly, with an observation about costs orders and interveners.
The importance of the case, it seems to me, derived more from its context than any point of legal principle. In fact, the central issue in the case was a rather simple one and was settled in the event by recourse to a long line of judicial authority: did it constitute direct racial discrimination under section 1(1)(a) of the Race Relations Act 1976 (RRA) to impose a criterion for admission to JFS (the Jewish free School as it used to be known) that the child applicant concerned be recognised as being Jewish by the Office of the Chief Rabbi of the United Congregation of the Commonwealth (OCR). If it did, then such was unlawful by reason of section 17, RRA which outlaws discrimination in the arrangements made for selecting children for admission to schools and permits of no relevant exceptions.
Whether such amounted to direct discrimination depended on the question whether the criterion differentiated on a proscribed ground; namely, as relevant here, ethnic origins. The meaning to be afforded the concept of direct discrimination under the RRA (and the other anti-discrimination enactments) and “ethnic origins” have been well explored in, in the former case, a number of House of Lords cases and, in the latter, in the historic House of Lords case of Mandla v Dowell Lee  2 AC 548. The core or essential characteristics that define an ethnic group were enumerated (if not for all eternity then for a very long time in discrimination law terms) by Lord Fraser in Mandla and, in short, they depend upon the group sharing a long history and a cultural tradition of its own. Other indicia might be relevant too and they include a shared geographical origin; a shared religion and other social characteristics. The Jewish people have long since been recognised as an ethnic group under the RRA (Seide v Gillette Industries Ltd  IRLR 427), as was intended by the legislature, and was, until this case, uncontroversial, in particular having regard to the history of oppression against Jewish people. According to Lady Hale “No Parliament, passing legislation to protect against racial discrimination in the second half of the twentieth century, could possibly have failed to protect the Jewish people, who had suffered so unspeakably before, during and after the Holocaust” (§67).
A rule which excluded a child because of a decision that they were too Jewish or were not Jewish enough would plainly, therefore, violate the prohibition on direct race discrimination.
The difficulty in this case derived from the fact that the question “who is a Jewish person” is not uncontroversial amongst the Jewish community. According to the Orthodox view and that of the OCR, whose prescription the JFS followed in their admission criteria, a Jewish person is a person who is the child of a Jewish mother (the matrilineal test) or a person who has become Jewish by conversion. JFS’s admission criteria gave preference to children whose mothers satisfied the matrilineal test or who were Jews by conversion by Orthodox standards. The child seeking admission to JFS in this case was not so recognised as Jewish by the OCR. His father was recognised as Jewish and his mother had undergone a course of conversion but not one recognised by the OCR. The family practised the Jewish faith and worshipped at a Synagogue. However, because his mother was not recognised as Jewish (through the matrilineal test or through conversion) the child was not afforded the preference accorded children whose mothers were so recognised.
If the preference afforded to children whose mothers were Jewish depended on an ethnicity criterion then, as a matter of ordinary construction of section 1(1)(a) and based on authority, such was directly discriminatory and unlawful.
Since Jewish people are recognised as an ethnic group, a criterion which depended upon Jewish (matrilineal) descent was necessarily direct discrimination on grounds of ethnic origins, as the majority of the Supreme Court held (Lord Phillips, Lady Hale, Lord Mance, Lord Kerr and Lord Clarke).
Two of the principal points emerging from the judgments of their Lordships concern, firstly, causation and secondly, the relevance of motive. The majority concluded, consistent with a long line of authority, that the question whether any less favourable treatment was “on grounds” of ethnic origins is to be decided by a simple factual enquiry: why was the victim treated as they were? Or, in the words of Lord Phillips: “what were the facts that the discriminator considered to be determinative when making the relevant decision” (§16) or, put differently still, by asking “whether …race was the criterion applied as the basis for discrimination” (per Lord Phillips, §20). This question is to be contrasted sharply with the question what was the motive for any discrimination (per Lord Phillips, §20). The fact that the motive for the discrimination by JFS was religious – to accord with Orthodox religious doctrine – was nothing to the point. As Lord Phillips observed: “The criteria whose application debarred M from entry to JFS are readily identified. They are the criteria recognised by the OCR as conferring the status of a Jew. The child will be a Jew if at the time of his birth his mother was a a Jew. His mother will be a Jew if her mother was a Jew or if she has converted to Judaism in a manner that satisfies the requirements of the Orthodox religion. M does not satisfy those criteria because of his matrilineal descent. His mother was not born of a Jewish mother and had not at the time of his birth complied with the requirements for conversion, as laid down by the OCR. Accordingly M does not satisfy the Orthodox test of Jewish status” (per Lord Phillips, §26). The criterion applied in his case was one which depended upon “origins” and given that Jewish people are an ethnic group, it was one which depended upon “ethnic origins”: “[O]ne thing is clear about the matrilineal test; it is a test of ethnic origin” (per Lord Phillips, §45). That differentiation was unlawful and the motive for it did nothing to rescue it.
The majority, in essence, all adopt the same reasoning, expounded by Lord Phillips in the first instance. But some observations about others of the judgments in the majority serve to highlight some of the difficulties that emerge in the approach taken to direct discrimination in a couple of them. Lord Mance and Lord Clarke both identify two ways in which direct discrimination can arise, or be established (per Lord Mance, §78; per Lord Clarke, §132, respectively). Firstly, where, whatever the motive, a decision is taken or condition applied which is inherently “racial” – that is, a race specific condition, such as those seen (in the case of gender) in R v Birmingham City Council, ex p EOC  AC 1155 and James v Eastleigh BC  2 AC 751. In such a case (adopting the language of Lord Goff in ex p EOC and James) the person would not have been treated in the way impugned but for their race (or ethnicity or gender, as the case may be). Secondly, where, again whatever the motive, a decision is taken for a reason which is subjectively “racial” – that is, the reason why a person has done an act is infected by considerations of race, whether the motive for that is malign or benign. The second approach may be the convenient way of determining whether treatment was “on the ground of race” in those cases where the ground for any treatment is unclear or obscure. The two approaches to identifying direct discrimination have not always been uncontroversial. Both tests are in fact intended to achieve forensically the same result – the answer to the question whether the treatment was “on racial grounds” (or on one of the other proscribed grounds). But the introduction of the “why” question has sometimes conflated causation and motive (Chief Constable of West Yorkshire v Khan  UKHL 48, a hard case which, though purportedly decided on orthodox grounds, might, on one analysis, be seen as such an example). It also sometimes encourages the construction of comparators that on close scrutiny are affected by the very circumstances impugned as connected to race, gender etc (see again Khan by way of example). The “but for” test has provided practitioners with a useful device for checking against this (bearing in mind that ethnicity, gender etc need only be one of the operative causes and in a case such as this, proof of which will be scrutinised in accordance with the burden of proof changes: section 57ZA, RRA). Its approval by the majority in this case is, therefore, very welcome.
The minority in this case fall in essence into the error identified by the majority; that is, conflating motive with “ground”. Thus the fact that the OCR’s guidance reflected deeply and sincerely held religious views lead them to assume that the reason why the child in this case was treated as he was, was religious and not attributable to ethnicity. In so doing, they embark upon an exploration of why the treatment was afforded (per Lord Hope, §192-5, 203). This is to confuse motive and “ground” and ignore the fact that the religious test applied was one which was inextricably linked to ethnicity and ethnic origins, in particular. Lord Rodger, in so approaching the complaint, further analysed the question by reference to a comparator that was both affected by considerations of ethnicity – and the wrong ones (Italian origin) – so distorting the statutory test and highlighting the difficulty of approaching these questions through the prism of a comparator (per Lord Rodger, §229).
The alternative claim was in indirect discrimination. The Court emphasised that direct and indirect discrimination are mutually exclusive and so the issue of indirect discrimination did not arise. However, the majority (who addressed it: Lady Hale, §71; per Lord Mance, §103, per Lord Kerr, §123, per Lord Clarke, §154, per Lord Hope, §214-5) found that if the criterion in issue in this case was indirectly, as opposed to directly, discriminatory then such would not have been justified. Interestingly, the construction of the pools for comparison by Lord Hope (in the minority on direct discrimination) reveals the fallacy in the contention that the distinction in this case was not attributable to ethnicity: According to Lord Hope, the disadvantaged groups were those “who are not of Jewish ethnic origin in the maternal line together with those whose ethnic origin is entirely non-Jewish” and the advantaged group as those “who are of Jewish ethnic origin in the maternal line” (§205). That highlights precisely that which was in issue in the direct discrimination claim in this case – the ethnically based criterion.
Certain other aspects of the judgments deserve comment (and more than I have space for here). Some of those important aspects include (i) the reference to the justification of direct discrimination (ii) the importance of “descent” in determining ethnicity and (iii) the “benign” nature of the discrimination in issue.
Firstly, as to the justification of direct discrimination, as the statutory scheme makes clear, this is not permissible (in fact narrow, and – so far as this case is concerned – irrelevant, exceptions are enacted). The RRA and the other anti – discrimination enactments instead enact a formalistic and symmetrical concept of discrimination and inequality. This means that, however positive or benign an act of direct discrimination, unless specially exempted, it will violate the RRA (and the other enactments). As Lady Hale observes, “Parliament might have adopted a model of substantive equality, allowing distinctions which brought historically disadvantaged groups up to the level of historically advantaged groups. But it did not do so. It adopted a model of formal equality” (§67). And such does not allow for the justification of objectively beneficial forms of discrimination. Lord Phillips too flags up the absence of the opportunity of justifying direct discrimination (§9). The Equality Bill does not nothing to change this formalistic approach to direct discrimination, and the absence therefore of justification in direct discrimination. Trusting the judges with justification is still something equality practitioners feel deeply anxious about. Perhaps the new Supreme Court and (one assumes eventually) an increasingly diverse judiciary will shift attitudes on this.
Secondly, as was pointed out, a condition which is dependent upon descent alone may not be one which is referable to race or ethnicity. Lord Phillips uses the example of a requirement that one be descended from a peer or a SOGAT official (exemplifying a power struggle of a different sort) (§ 43). But descent has often proved important in ascribing characteristics to preferred or non-preferred groups with catastrophic personal and social consequences. The history of slavery has taught us that at least. That CERD acknowledges differentiations based on descent as an important indicia of race discrimination is important in this context.
Thirdly, a number of their Lordships and her Ladyship were at pains to express some sympathy with the JFS and, moreover, emphasise that the treatment in issue in this case could in no way be described as “racist” in the way that expression is popularly understood (per Lord Phillips, §9; per Lady Hale, §50, repeated in various ways in others of the Judgments). As Lord Rodger (dissenting) observed, however, “If the majority are right, expressions of sympathy for the governors of the school seem rather out of place since they are doing exactly what the Race Relations Act exists to forbid: they are refusing to admit children to their school on racial grounds” (§225).
Racism is, of course, about ‘other-ing’; usually by a dominant group towards a less dominant group and in part as a means of preserving actual or perceived power, often by maintaining the “purity” of the preferred or dominant race, as with slavery. That religious scripture might be said to prescribe this is sometimes used as justification – as in the Dutch Reform Church and its support for Apartheid. That the Dutch Reform Church really believed that racial distinctions (and hierarchies) were mandated by God did not make them less racist and the distinction drawn by certain of their Lordships as to this religious doctrine, on the basis that such is “overtly racist”, is not easy to divine and certainly not compelling (per Lord Hope, §202; per Lord Walker, §245). Some – many perhaps – might regard distinctions based on birth and referable to race or ethnicity (or “racial” distinctions, as the RRA collectively describes them) as racist, whether or not a justification for it can be found in ancient scripture (from which many things might be found that would not be tolerated in a modern liberal democracy). As Lord Justice Sedley pretty impressively (from an equality perspective) put it in the Court of Appeal:
“M was refused admission to JFS because his mother, and therefore he, was not regarded as Jewish. The school has been perfectly open in giving this as the ground of non-admission. There are of course theological reasons why M is not regarded as Jewish, but they are not the ground of non-admission: they are the motive for adopting it. If it were otherwise, a person who honestly believed, as the Dutch Reformed Church of South Africa until recently believed, that God had made black people inferior and had destined them to live separately from whites, would be able to discriminate openly without breaking the law. The reason why it is not so is that the ground of any such discrimination would be that the victim was black; its religious motive would be immaterial. In Seide v Gillette Industries  IRLR 427 the Employment Appeal Tribunal recognised that discrimination against a Jew might be directed at his religion rather than his race; but this is of no assistance in a case where the religious belief in question is that of the alleged discriminator, not of the victim.” (§§30-31 and see Lord Clarke in the Supreme Court, §150).
There is something intuitively repugnant about describing a minority group and one which has been disadvantaged in the most terrible way imaginable as being “racist” for circumscribing the boundaries of its own membership. But the question of racial purity – and inevitably, therefore, “ethnic” or “racial” descent – has a hideous, socially damaging and cruel history too. Lady Hale remarked that “Jewish law has enabled the Jewish people and the Jewish religion to survive throughout centuries of discrimination and persecution. The world would undoubtedly be a poorer place if they had not. Perhaps they should be allowed to continue to follow that law” (per Lady Hale, §69). But perhaps a Jewish law which was not based on objectionable discrimination connected to ethnicity might be no less strong for that.
As a postscript, the Court addressed the protective costs orders made in respect of certain of the interveners and their conclusions sound a cautionary note to interveners generally. Interventions are becoming more frequent in public interest litigation and are commonly made by NGOs who require some protection against the prospect of crippling costs orders. This is usually addressed by extracting agreement from the parties that they will not seek an order for costs against the intervener in return for not seeking costs against the parties, or by obtaining an order in the same terms. In this case, such an order was made in favour of certain of the interveners, on their being granted leave to intervene at first instance, only for the Court of Appeal to make an order for (a proportion of the) costs against certain of the interveners. The Supreme Court upheld the order for costs on the ground that the intervention of intervener appealing the order “was transformed when the case reached the Court of Appeal” so that, in essence, it was leading the argument in favour of the Appellant. The Supreme Court did limit the costs order to those in the Court of Appeal so respecting the protection apparently granted at first instance. However, it would be prudent to advise all interveners, especially those with limited resources, to review the costs position at each stage of the proceedings.