On 14 October 2009, the first judgment of the new UK Supreme Court was delivered in response to an application for a protective costs order under the Supreme Court Rules 2009 in R (E) v Governing Body of JFS.  The judgment is discussed here. The full appeal in this same case is listed to be heard by a panel of nine Justices on Tuesday 27 October. The appeal will determine whether the admissions policy into a faith school (when oversubscribed) constitutes racial discrimination under the Race Relations Act 1976 (“RRA”). 

Although the law generally prohibits racial and religious discrimination, faith schools are exempt from religious discrimination on the basis that they are entitled to educate children in the religious beliefs of their parents (article 2 of the First Protocol to the European Convention of Human Rights). No school is allowed to discriminate on racial grounds under the RRA.

M applied to be admitted to the oversubscribed Jewish Free School (the “JFS”). Because the school was oversubscribed, it admitted pupils in accordance with its admissions policy, which gave priority to Orthodox Jewish children.
M’s father was Jewish by birth and his mother Jewish by conversion. The Office of the Chief Rabbi (“OCR”) did not recognise the mother’s conversion to Judaism as it was not conducted in an Orthodox synagogue. As a child is only recognised by the OCR as being Jewish if his mother is, M was refused permission to attend the school. E, M’s father, brought the following two claims for judicial review:
1.         against the JFS governors for refusing to offer M a place, against the JFS’ appeal    board for upholding the position and then against both the JFS governors and the JFS’ appeal board for failing to act with the ‘due regard’ required by the RRA (s.71);  and
2.         against the JFS’ adjudicator for finding the admissions policy to be lawful, when in  fact it was it should have been found unlawful because of the exclusionary feature.
At first instance, Munby J held that the admissions policy was lawful. Munby J’s only exception in rejecting the claimant’s claim was to find that the JFS did breach its ‘due regard’ duty under the RRA. E appealed on the substantive discrimination issues to the Court of Appeal.
For the purpose of the appeal, the parties had agreed that the question in issue was whether the JFS’ admission criteria were unlawfully discriminatory. The respondents to the appeal said that the criteria was merely religious and not ethical and did not therefore constitute racial discrimination under the RRA.
In finding for the appellant, the Court of Appeal relied on the reasoning by Lord Fraser in the House of Lords decision in Mandla v Dowell-Lee. The Court of Appeal in R (E) v Governing Body of JFS [2009] EWCA Civ 626, based on Lord Fraser’s reasoning in Mandla v Dowell-Lee, held that Jews did constitute a racial group, both by ethnic origin and conversion, and that therefore, to discriminate against someone either because they are or are not Jewish, is to discriminate on racial grounds. Sedley LJ commented in the Court of Appeal decision that the ‘motive for discrimination….makes it no less and no more unlawful’ and that M was treated less favourably because of his race and had been subjected to direct discrimination. In the alternative, the court held that the JFS’ policy of selecting pupils based on their ethnicity could not constitute a legitimate act under the RRA.
As we mentioned on 9 October, there are now 5 interveners in the hearing before the Supreme Court.
The appeal will be heard by Lords Phillips, Hope, Rodger, Walker, Lady Hale, and Lords Brown, Mance, Kerr and Clarke on Tuesday, Wednesday and Thursday.