COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE HON. MR JUSTICE MUNBY
No .2 CO/11587/2007
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE SMITH
LORD JUSTICE RIMER
| No.1 THE QUEEN ON THE APPLICATION OF E
(i) THE GOVERNING BODY OF JFS
(ii) THE ADMISSIONS APPEAL PANEL OF JFS
(i) THE SECRETARY OF STATE FOR EDUCATION
(ii) THE LONDON BOROUGH OF BRENT
(iii) THE OFFICE OF THE SCHOOLS ADJUDICATOR
THE UNITED SYNAGOGUE
No.2 THE QUEEN ON THE APPLICATION OF E
- and -
THE OFFICE OF THE SCHOOLS ADJUDICATOR
(iv) THE GOVERNING BODY OF JFS
(v) THE LONDON BOROUGH OF BRENT
| (vi) DAVID LIGHTMAN
(vii) KATE LIGHTMAN
(viii)THE BRITISH HUMANIST ASSOCIATION
THE UNITED SYNAGOGUE
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Mr Peter Oldham (instructed by Messrs Stone King Sewell) for the first Respondents No.(i) & (ii)
Mr Tom Lindon QC and Mr Dan Squires (instructed by Treasury Solicitor) for Interested Party (i)
Interested Party (ii) did not appear and were not represented
Mr Clive Lewis QC (instructed by the Treasury Solicitor) for Interested Party (iii)
Lord Pannick QC and Mr Ben Jaffey (instructed by Farrer & Co LLP) for the Intervener both cases
Mr Clive Lewis QC (instructed by Treasury Solicitor) for the second Respondent
Mr Peter Oldham (instructed by Messrs Stone King Sewell) for the Interested Party (iv)
Interested Party (v) did not appear and were not represented
Interested Parties (vi) and (vii) did not appear and were not represented
Mr David Wolfe (instructed by Messrs Leigh Day & Co) for the Intervener (viii)
Hearing dates: Tuesday 12 Thursday 14 May 2009
Crown Copyright ©
Lord Justice Sedley :
This is the judgment of the court.
The appeal in summary
The procedural background
"Recognising its historic foundation, JFS will preserve and develop its religious character in accordance with the principles of Orthodox Judaism, under the guidance of the Chief Rabbi of the United Hebrew Congregations of the Commonwealth. The school aims to serve its community by providing education of the highest quality within the context of Jewish belief and practice. It encourages the understanding of the meaning of the significance of faith and promotes Jewish values for the experience of all its pupils."
1. Racial discrimination.
(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or ..
(1A) A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (1B), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but
(a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons,
(b) which puts that other at that disadvantage, and
(c) which he cannot show to be a proportionate means of achieving a legitimate aim.
S.1(1B) itemises s.17, which makes it unlawful for a school to discriminate on racial grounds in relation to admissions. There is a special needs exemption in s.35, but this is designed to protect religious seminaries and the like, not maintained schools in the public education system.
3. Meaning of "racial grounds", "racial group" etc.
(1) In this Act, unless the context otherwise requires
"racial grounds" means any of the following grounds, namely colour, race, nationality or ethnic or national origins;
"racial group" means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls.
(2) The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group for the purposes of this Act.
(4) A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) or (1A) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
1.1 It is JFS ("the School") policy to admit up to the standard admissions number the children who are recognised as being Jewish by the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth (OCR).
1.2 In the event that the School is oversubscribed then only children who satisfy the provisions of paragraph 1.1 above will be considered for admission, in accordance with the oversubscription criteria set out in Section 2, below.
Nothing turns in the present case on those criteria, which set out an order of priority.
"or who have already enrolled upon or who have undertaken, with the consent of their parents, to follow any course of conversion to Judaism under the approval of the OCR."
The reason why this further criterion does not affect the critical question is not so much that, at least if the appellant's evidence is accepted, such a course of conversion is likely to outlast most of the child's secondary schooling. It is that affording a special path to a benefit to which others have access without discrimination (for example a club which admits any men but only women with degrees) is in principle not an answer to the initial act of discrimination. The very fact that one gender or racial group will find it harder than another to qualify makes it discriminatory.
"to educate those who, in the eyes of the OCR, are Jewish, irrespective of their religious beliefs, practices or observances, in a school whose culture and ethos is that of Orthodox Judaism"
Who is Jewish?
"will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision."
In Chief Constable of West Yorkshire Police v Khan  ICR 1065 Lord Nicholls reiterated this and put the material question this way:
" [W]hy did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."
"My Lords, I recognise that " ethnic " conveys a flavour of race but it cannot, in my opinion, have been used in the 1976 Act in a strictly racial or biological sense. For one thing, it would be absurd to suppose that Parliament can have intended that membership of a particular racial group should depend upon scientific proof that a person possessed the relevant distinctive biological characteristics (assuming that such characteristics exist). The practical difficulties of such proof would be prohibitive, and it is clear that Parliament must have used the word in some more popular sense. For another thing, the briefest glance at the evidence in this case is enough to show that, within the human race, there are very few, if any, distinctions which are scientifically recognised as racial" (p.561).
"For a group to constitute an ethnic group in the sense of the 1976 Act, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant; (3) either a common geographical origin, or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion, different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups.
A group defined by reference to enough of these characteristics would be capable of including converts, for example, persons who marry into the group, and of excluding apostates. Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he is, for the purposes of the Act, a member. That appears to be consistent with the words at the end of subsection (1) of section 3:"`references to a person's racial group refer to any racial group into which he falls." In my opinion, it is possible for a person to fall into a particular racial group either by birth or by adherence, and it makes no difference, so far as the 1976 Act is concerned, by which route he finds his way into the group. This view does not involve creating any inconsistency between direct discrimination under paragraph (a) and indirect discrimination under paragraph (b). A person may treat another relatively unfavourably on racial grounds "because he regards that other as being of a particular race, or belonging to a particular racial group, even if his belief is, from a scientific point of view, completely erroneous " (p.562-3).
Direct or indirect?
"Those who are not of Jewish racial or ethnic origins are less likely to be regarded as Jewish according to Jewish law and therefore less likely to be admitted to JFS."
"a clear distinction between, on the one hand, those cases where the defendant expressly or covertly acts by reference to the sex of the plaintiff and, on the other, those cases where the defendant acted on grounds not expressly or covertly related to sex but his actions have caused a disparate impact as between the sexes."
In their Lordships' House, Lord Bridge, with whom Lord Ackner and Lord Goff agreed, said:
"The fallacy, with all respect, which underlies and vitiates this reasoning is a failure to recognise that the statutory pensionable age, being fixed at 60 for women and 65 for men, is itself a criterion which directly discriminates between men and women in that it treats women more favourably than men 'on the ground of their sex' . It follows inevitably that any other differential treatment of men and women which adopts the same criterion must equally involve discrimination 'on the ground of sex'."