QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (E)
|- and -
|THE GOVERNING BODY OF JFS
THE ADMISSIONS PANEL OF JFS
|- and -
|THE SECRETARY OF STATE FOR CHILDREN, FAMILIES AND SCHOOLS
THE LONDON BOROUGH OF BRENT
OFFICE OF THE SCHOOLS ADJUDICATOR
|- and -
|THE UNITED SYNAGOGUE
QUEEN'S BENCH DIVISION
| R (E)
|- and -
|OFFICE OF THE SCHOOLS ADJUDICATOR
|- and -
|(1) THE GOVERNING BODY OF JFS
(2) LONDON BOROUGH OF BRENT
(3) Mrs L
(4) Mr L
|- and -
|THE BRITISH HUMANIST ASSOCIATION
THE UNITED SYNAGOGUE
Mr Peter Oldham (instructed by Stone King LLP) for the Governing Body of JFS and the Admissions Panel of JFS
Mr Rabinder Singh QC and Mr Dan Squires (instructed by the Treasury Solicitor) for the Secretary of State
Mr Ben Jaffey (instructed by Farrer & Co) for The United Synagogue
Mr David Wolfe (instructed by Leigh Day & Co) for the British Humanist Association
Mr Clive Lewis QC (instructed by the Treasury Solicitor) for The Schools' Adjudicator filed written submissions but did not attend
Mr L was present in person but made no submissions
The other Interested Parties did not attend and were not represented
Hearing dates: 4-7 March 2008
(further written submissions lodged on 27 March 2008, 7 and 8 April 2008)
Crown Copyright ©
Mr Justice Munby :
The factual background
The factual background: the British Jewish community
Orthodox 60.7% Progressive (Reform and Liberal) 27.3% Strictly Orthodox (Haredi) 10.5% Masorti (Conservative) 1.5%
The factual background: Jewish law and belief
"This statement sets out fully the essential principles of Jewish law which need to be understood with respect to the issues in this case. Dayan Gelley's statement also accurately records the application of Jewish law to the individual cases concerned."
The factual background: Jewish law and belief Orthodox Judaism
"There is a fundamental divide between the Orthodox Jewish movements generally and the non-Orthodox ones, because of other denominations' doubts concerning the revelation of the Torah, and because of their rejection of Jewish legal precedent as binding. As such, Orthodox groups characterise non-Orthodox forms of Judaism as unacceptable variations in Jewish religious practice."
As Dayan Gelley points out, such differences between religious denominations are, of course, not unique to Judaism. He draws parallels with Christianity, where Protestant, Roman Catholic and Christian Orthodox beliefs are distinct denominations within Christianity, and with Islam, where there are the Sunni and Shia movements. He referred to the recent pronouncement of the Congregation for the Doctrine of the Faith, issued with the full authority of the Pope (see The Times, 11 July 2007), to the effect that "only Catholicism was fully Christ's Church" and that the Protestant and Orthodox faiths are "not proper Churches."
"Education about the Jewish faith is considered by Orthodox Jews to be a fundamental religious obligation on all Jews. A person may be Jewish, but the Jewish faith is complex and often demanding. An understanding and appreciation of the Jewish faith takes many years to cultivate, through learning, debate and thinking. This is one of the primary purposes of schools such as JFS, which seek to help those who are Jewish (or who are undergoing conversion) understand, learn about and follow their faith."
"A convert's state of mind at the moment of conversion (ie immersion in a mikveh) is absolutely vital to the validity of an Orthodox conversion.
If, for example, the convert was prepared to accept some or even most of the laws of Orthodox Judaism, but was not prepared to accept certain laws or even one law (eg the laws concerning Sabbath observance or the dietary laws) the conversion would be invalid because the convert was unwilling to accept the Orthodox Jewish faith in its entirety at the moment of conversion.
Indeed, it is a well established point of Jewish Law that if a Beth Din discovers new information relevant to the time of a conversion, it should consider whether the conversion was valid, even if the conversion was not recent or took place in a different jurisdiction."
As Mr Frei puts it, "at the moment of immersion in a mikveh" the convert must make "a total and unconditional commitment to accept the tenets of orthodoxy and practice its detailed laws (including those with which they may not yet be familiar)".
"Citizenship in liberal democracies is a secular concept. Conversion, by contrast, is irreducibly religious It involves the adoption of a religious way of life. Secular conversion to a religious identity is logically impossible.
The nature of this religious dimension can be summed up in two Hebrew words: kabbalat hamitzvot, acceptance of the commands. This can be construed strictly or leniently. Conversion is an unusual case in which the rigor of the law is left to the discretion of the court. But the condition exists, however construed. Conversion must involve acceptance of the commands.
If a convert, by his or her behaviour, demonstrates a genuine commitment to Jewish law and practice at the time of conversion, it remains valid even if he or she later abandons it. A lapsed convert is a lapsed Jew, not a lapsed gentile. If, however, there was no significant religious observance at the time, the conversion is void. Acceptance of the commands is constitutive of conversion. Without it, conversion cannot be said to have taken place.
Converting to Judaism is a serious undertaking, because Judaism is not a mere creed. It involves a distinctive, detailed way of life. When people ask me why conversion to Judaism takes so long, I ask them to consider other cases of changed identity. How long does it take for a Briton to become an Italian, not just legally but linguistically, culturally, behaviourally? It takes time.
The analogy is imperfect, but it helps to explain the most puzzling aspect of conversion today: the sometimes different standards between rabbinical courts in Israel and Britain. Several decades ago an Israeli Chief Rabbi argued that Israeli rabbinical courts should be more lenient than their counterparts in the Diaspora. His reasons were technical, but they make sense. It is easier to learn Italian if you are living in Italy. In Israel, many aspects of Jewish identity are reinforced by the surrounding culture. Its language is the language of the Bible. Its landscape is saturated by Jewish history. Shabbat is the day of rest. The calendar is Jewish."
The factual background: Jewish law and belief Reform, Liberal and Masorti Judaism
"When it comes to matters of Jewish status we are more liberal than the O[ffice of the] C[hief] R[abbi] and adopt a more inclusivist strategy. This applies particularly in the area of conversion where we are keen to count in as many people who wish to define themselves as Jews as possible our formal requirements for conversion are almost exactly the same as those of Orthodoxy but we are less exacting and more 'pluralistic' in the demands we make in terms of religious observance.
The Movement for Reform Judaism favours a much more liberal and inclusive definition of Jewish status than the OCR but the fundamentals descent and conversion are the same."
"The crucial difference between the Movement for Reform Judaism and the OCR/United Synagogue is that we will accept the documentation of any reputable Jewish authority throughout the world whereas they are much more restrictive."
The factual background: JFS
"The religious observance and instruction in the School shall be in accordance with the practice, rites and doctrines of the Jewish faith and for these purposes the decision of the Chief Rabbi of the United Hebrew Congregations of the British Commonwealth and Empire shall be final."
Dr Black contrasts the approach of the Governors in 1957 to their reaction in 1852 (described on pages 81-83) to a similar amendment proposed by the Jewish Board of Deputies, when, "wishing to retain the School's complete and absolute independence from ecclesiastical involvement", the Governors had "objected strongly", with the consequence that the amendment was dropped. "This time", he comments, "there was no one to object and argue that the School should be free from all ecclesiastical influence and control on the contrary it was welcomed."
"Statement of School Ethos
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 British 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."
"The outlook and practice of the School is Orthodox. One of our aims is to ensure that Jewish values permeate the School. Our students reflect the very wide range of the religious spectrum of British Jewry. Whilst two thirds or more of our students have attended Jewish primary schools, a significant number of our Year 7 intake has not attended Jewish schools and some enter the School with little or no Jewish education. Many come from families who are totally committed to Judaism and Israel; others are unaware of Jewish belief and practice. We welcome this diversity and embrace the opportunity to have such a broad range of young people developing Jewish values together "
"JFS is a Voluntary Aided Comprehensive School for Jewish students whose range of religious affiliation within the Jewish faith is very wide "
Under paragraph 1.2(b) it is said that:
"The School is committed, in accordance with Jewish principles, to the fair and equal treatment of all individuals. In particular, the School will disregard considerations based upon colour, disability, ethnic or racial origins, gender, marital status, nationality or religion, except as provided for in the School's authorised Admissions Policy."
Under the heading 'Aims' paragraph 3 includes the following:
"3.1 JFS strives to ensure that the culture and ethos of the School, are based upon orthodox Judaism as defined by the Office of the Chief Rabbi, are such that, whatever the heritage and origins of members of the school community, everyone is equally valued and treats one another with respect
3.2 Equal opportunities law does not override a Jewish school's right to give preference in admissions to Jewish students."
"This implies that the principles of the Reform and Liberal synagogues are inimical to religion as taught in the School, even though the parents of many pupils are members of the Reform movements. The introduction of the policy can, of course, be traced to the successful efforts made by the United Synagogue and the London Board to ensure a special place for the Chief Rabbi and the United Synagogue."
The factual background: JFS admissions policy
"1.1 It is JFS ("the School") policy to admit up to the standard admissions number children who are recognised as being Jewish by the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth (OCR) 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.
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."
The words I have emphasised did not appear in the admissions policies for 2005/06 and 2006/07.
"Controversy arises because conversions by the Reform or Liberal Synagogues do not come within the definition.
There is no requirement that the Jewish mother must be a practising Jewess or member of an orthodox synagogue. Anomalies abound. The accepted 'Jewish' mother whose child is eligible to go to JFS might now be a member of the Reform synagogue or of no synagogue, be an agnostic or an atheist that would not debar her child from entrance. An observant mother, who regularly attends synagogue and keeps a kosher home cannot enter her child at JFS if she, the mother, is Jewish by conversion under Reform or Liberal auspices."
As Ms Dinah Rose QC puts it on behalf of the claimant, the extent of religious observance practised by a family is wholly irrelevant to admission to JFS. The only consideration is whether the child is, within the OCR's understanding of the Halakah (Jewish law), a Jew, that is of Jewish descent in the maternal line or whose mother can satisfy the OCR that she properly converted before the birth of the child.
The factual background: the families
The factual background: the families E's son, M
The factual background: the families the L family
"They were told that we shall have to decide whether, in view of her closeness to Mr L and his family before her conversion and her subsequent marriage to him soon after, knowing that he is a Cohen and the marriage therefore forbidden, she could be said to have accepted the Jewish faith without reservation."
The final decision was reserved, being communicated to Mr and Mrs L in a letter from the Beth Din dated 25 April 1991:
"Due to the circumstances of Mrs L's contracting a forbidden marriage soon after her conversion we very much regret that we are unable to recognise the validity of her conversion. Consequently we cannot authorise a Mohel [ritual circumciser] to perform a Brit on your son."
"it appeared to the LBD that at the time of conversion, Mrs L intended to marry Mr L, despite knowing that such a marriage was contrary to Jewish law. She therefore did not accept the tenets of the Orthodox Jewish faith at the time of her conversion, and her conversion was accordingly held by the LBD to be invalid. Accordingly, Jewish status did not pass to Mrs L's children by matrilineal descent.
It is important to note that it is not the marriage between Mr and Mrs L that is itself of concern. Although this was a breach of Orthodox Jewish law (in the same way as not keeping the Sabbath, or breaching dietary laws are a breach of Jewish law), it is the fact that at the moment of her conversion she did not accept all the tenets of Orthodox Judaism that invalidates the conversion."
"Given this information, in relation to the School's Admissions Policy, your daughter will only be considered for admission in the event that JFS is unable to fill its standard admissions number with children who are recognised as being Jewish by the Office of the Chief Rabbi.
If you have any questions regarding your daughter's Jewish status they should be addressed directly to [the OCR]."
"we have been fighting for justice for our family for many years now and to not be able to pursue justice is almost unbearable. The actions of the Beth Din in not accepting my Jewish status, causes me immense hurt, distress and torment on a daily basis, both to me as a practising Jew of over 20 years and to me as a mother. The only thing worse than my pain is to see the pain of my daughter."
"It has been particularly difficult for my wife teaching at JFS although she has had a great deal of support from the staff and parents, for which she we are grateful.
My daughter leads an active Jewish life and asks why she can't go to the school of her choice, where her mother teaches and where I and my sisters were pupils. I find this hard to explain to her, other than saying that there are small-minded people stopping it from happening.
I am desperately sorry that we are unable to take our own proceedings but we are a family of average means against a large, well-financed establishment.
I cannot begin to express the pain and suffering that our whole family feels as a consequence of the actions of the London Beth Din. It has now been with us for many years without it diminishing or dimming. My wife has been incredibly brave in going public about this matter and the distress will only be over when our family is accepted as Jewish by the Beth Din and when [our daughter] is given a place at JFS."
The factual background: the families the S family
"Regrettably, given the details of your conversion with particular regard to the level of commitment and observance to Orthodox Jewish practice at the time of your conversion, the Beth Din is not able to recognise your conversion effected in Israel.
I am sorry to disappoint you However, the issue is one of Halachik Jewish status and we are simply not able to accept the existing conversion.
At the same time, I would like to offer that should you wish to undertake tuition with the intention of becoming fully observant, we would be in a position to consider regularising your conversion."
The decision was maintained in a further letter from the Beth Din dated 14 March 2005.
"The crucial question before the Chief Rabbi and the Beth Din was whether or not they should recognise the validity of your conversion to Judaism which took place in Israel in June 1990.
In order to do so, they sought to establish your level of commitment to Orthodox Jewish practice at the time of your conversion as evidenced and demonstrated by your practice before immediately prior to and immediately after the conversion and by reference to all the surrounding circumstances of the conversion.
You were unable to describe any active involvement in Jewish life, on your return to England and within 3½ months of the conversion you married an Israeli who describes himself as a "secular Jew" who did not even attend Synagogue on Yom Kippur, after he had moved with you to a Jewish area. It was also apparent that your knowledge of Jewish religious practice was minimal in the extreme.
On the basis of your own account of the conversion process the Chief Rabbi and Beth Din determined there were serious flaws in the conversion, as you were unable to provide us with evidence that, whether at the time of your conversion or subsequently, you maintained even the most basic observance of Jewish law, essential to the validity of a conversion.
The Chief Rabbi and the Beth Din have decided, that they have no grounds to overturn the previous finding of the Beth Din, as reflected in [the] letter of 13th January 2005 and are unable to recognise your conversion."
"We decided not to take the matter further I still feel that it is ridiculous that I and my children are recognised as Jewish by the Orthodox authorities in Israel (who have confirmed that my conversion is valid) but not in England and feel very sad that my sons are not able to have the benefit of a Jewish education."
" any Rabbinic Court whether in Israel or outside Israel has the authority to review the validity of a conversion which has been carried out, on the basis of evidence brought before it at the time that the case is being reviewed.
Similarly, there is nothing to prevent any Beth Din within its own jurisdiction evaluating the validity of a conversion which has taken place elsewhere when the conversion is brought into question. The above is consistent with established halachic practice."
The history of the dispute
The history of the dispute: JFS
"because the School has not received evidence of [M]'s Jewish status it would not be possible to consider [M] for a place unless and until all those applicants whose Jewish status has been confirmed have been offered places. It follows from this that, as the School is likely to remain heavily oversubscribed, [M]'s position on the offer list will almost certainly be very low and the likelihood of being able to offer a place is very small."
The history of the dispute: the Appeals Panel
i) First, that JFS was in breach of the 1976 Act by discriminating against M on racial grounds.
ii) Second, that JFS had breached the School Admissions Code of Practice 2003 (see below) by determining M's admission by reference to questions about his background which did not relate to faith.
iii) Third, that JFS had breached its admissions policy by indicating that a child could be admitted who had undertaken to embark or embarked upon an approved conversion course, when this was not in fact possible.
"as the grounds for your appeal appeared to be based on a challenge to the Admission criteria of JFS it was outside the remit of this Appeal Panel to deal with this, where the Panel took the view that there was no evident unlawfulness in the criteria in question, and that therefore you must take this issue through other channels."
The history of the dispute: the Schools Adjudicator
The proceedings: the first application for judicial review
i) First, it is said that JFS's admissions policy is unlawful in that:
a) it does not reflect JFS's designated religious character;
b) it discriminates directly and/or indirectly on racial grounds against children who are not of Jewish ethnic origin / descent through the maternal line; and
c) it unlawfully fetters the Governing Body's discretion and/or sub-delegates to the OCR decisions on the admission of pupils to JFS.
Accordingly, it is said that the Governing Body acted unlawfully in applying the admissions policy to M and refusing to admit him to JFS.
ii) Secondly, it is said that the Appeal Panel acted unlawfully and unfairly in dismissing E's appeal in that:
a) it wrongly concluded that it had no jurisdiction to consider or determine his grounds of appeal and wrongly treated itself as bound by the admissions policy; and
b) unfairly gave him no advance notice of the 'case against' M's admission (which was set out in a detailed document submitted by the Governing Body well in advance of the hearing) and unfairly gave him an inadequate opportunity to present an appeal on the 'social and medical' grounds it indicated it was prepared to consider.
iii) Thirdly, it is said that both the Governing Body and the Appeal Panel have failed and are continuing to fail to discharge their duties under section 71.
i) A declaration that JFS's admissions policy for 2007/08 is unlawful in that:
a) it does not reflect JFS's designated religious character;
b) it discriminates directly or indirectly on racial grounds against children who are not of ethnic Jewish descent through the maternal line;
c) it fails to take into account the requirements of the School Admissions Code of Practice 2003.
ii) A declaration that the Governing Body discriminated unlawfully against M on racial grounds in refusing to admit him to JFS, contrary to sections 1, 17 and 19B of the 1976 Act.
iii) Orders to quash the Refusal and the Appeal Decision, and to require the Governing Body to reconsider the admission of M to JFS.
The proceedings: the second application for judicial review
i) it does not reflect JFS's designated religious character;
ii) it discriminates directly or indirectly on racial grounds against children who are not of ethnic Jewish descent through the maternal line;
iii) it unlawfully fetters the Governing Body's discretion and/or sub-delegates to the OCR decisions on the admission of pupils to JFS;
iv) it is contrary to the School Admissions Code 2007; and
v) it includes provision for the admission of children who have enrolled upon a course of conversion to Judaism under the approval of the OCR (it is said that this provision in unfair and misleading because the OCR has stated that it would not in fact approve any such child until the course was complete or virtually compete a process taking many years with which, for all practical purposes, a child cannot comply).
i) A quashing order to quash the Schools Adjudicator's decision.
ii) A declaration that JFS's admissions policy for 2008/09 is unlawful.
The hearing: the views of M's mother
"The High Court is not the place to discuss Jewish law."
She points out that E has obtained a place for M at another school and says that she has given her consent to M attending that other school, where he is "settled." She says "This judicial review process is an unnecessary investment of everybody's time, money and resources." In documents which she handed in to me during the course of the hearing she made a variety of complaints about E and various others.
The wider context
The wider context: the views of JFS and the United Synagogue
"The State's duty of neutrality and impartiality, as defined in the Court's case law, is incompatible with any power on the State's part to assess the legitimacy of religious beliefs."
So, says Mr Oldham, far from E's claim being well founded, Orthodox Jews would have a claim under the Convention (Article 14 read in conjunction with Article 2 of Protocol 1) if there were to be a ban on schools giving priority, if oversubscribed, to Orthodox Jews but no such ban on schools giving such priority to children of other religions.
The wider context: other views in the Jewish community
"But that is an internal matter for the Jewish community. We would not want the law of the land to question the right of the OCR to define Jewish identity the way that it does. We do not think it is wise or right for the State to get involved. In any event, this has nothing to do with race or racism."
"What would be absolutely ridiculous and unacceptable would be to require synagogue attendance or a defined level of religious practice
We would be equally outraged" that is, equally with Orthodox Judaism "if a 'Christian' model of 'Church' membership and attendance were imposed. We would advise very strongly against government or legal intervention in the admissions criteria at JFS even though our view of the needs of the Jewish world and our outlook on the best strategy to maintain and develop Jewish life is very different. In our view, the OCR policy with regard to admission to JFS is strategically wrong, 'politically' motivated, not in the interests either of the community or the family concerned and unjust. But we would not want the courts or the government to intervene or adjudicate, certainly not on grounds of racial discrimination."
The wider context: the view of the Secretary of State
The legal context
The legal context: the role of the court
The legal context: the European Convention
"1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2 Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."
"The Court refers to its settled case law to the effect that, as enshrined in Art. 9, freedom of thought, conscience and religion is one of the foundations of a "democratic society" within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it."
The court explained its view of pluralism at para :
"pluralism is also built on the genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs, artistic, literary and socio-economic ideas and concepts. The harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion."
"While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to "manifest [one's] religion" alone and in private or in community with others, in public and within the circle of those whose faith one shares. Since religious communities traditionally exist in the form of organised structures, Art. 9 must be interpreted in the light of Art. 11 of the Convention, which safeguards associative life against unjustified state interference. Seen in that perspective, the right of believers to freedom of religion, which includes the right to manifest one's religion in community with others, encompasses the expectation that believers will be allowed to associate freely, without arbitrary state intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Art. 9 affords."
It returned to the same point in para :
"Where the organisation of the religious community is at issue, a refusal to recognise it constitutes interference with the applicants' right to freedom of religion under art 9 of the Convention. The believers' right to freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary State intervention."
"The State's duty of neutrality and impartiality, as defined in the Court's case law, is incompatible with any power on the state's part to assess the legitimacy of religious beliefs."
It returned to the point in para :
"The Court points out that, according to its constant case law, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate."
"No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."
Note that the word used here is "convictions" contrast the words "manifest in worship, teaching, practice and observance" in Article 9(2). As to this it is important to see what the court said in Campbell and Cosans v United Kingdom (1982) 4 EHRR 293 at para  (citations omitted):
"the expression "philosophical convictions" in the present context denotes, in the Court's opinion, such convictions as are worthy of respect in a "democratic society" and are not incompatible with human dignity; in addition, they must not conflict with the fundamental right of the child to education, the whole of Article 2 being dominated by its first sentence."
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
i) Objections to the admissions policy:
a) direct race discrimination;
b) indirect race discrimination;
c) breach of section 71;
d) failure to reflect JFS's designated religious character;
e) sub-delegation to the OCR / fettering of discretion;
f) breach of the School Admissions Code;
g) admission criteria unclear and unfair in relation to conversion.
ii) Objections to the Appeal Panel's conduct:
a) misdirection as to jurisdiction;
b) procedural unfairness.
The legal framework
i) voluntary aided schools;
ii) racial discrimination.
The legal framework: voluntary aided schools
The legal framework: racial discrimination
The legal framework: racial discrimination the statutory provisions
"(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
(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.
(1B) The provisions mentioned in subsection (1A) are
(b) section 17 ;
(c) section 19B "
It is common ground that racial discrimination may include treating a person less favourably because of the ethnic origins of a third party: see Zarczynska v Levy  IRLR 532.
"(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) It is unlawful, in relation to an educational establishment falling within column 1 of the following table, for a person indicated in relation to the establishment in column 2 (the "responsible body") to discriminate against a person
(a) in the terms on which it offers to admit him to the establishment as a pupil; or
(b) by refusing or deliberately omitting to accept an application for his admission to the establishment as a pupil "
It is common ground that the Governing Body is the responsible body. Section 19B(1) provides that:
"It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination."
Section 20 provides so far as material as follows:
"(1) It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services
(a) by refusing or deliberately omitting to provide him with any of them; or
(b) by refusing or deliberately omitting to provide him with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in the first-mentioned person's case in relation to other members of the public or (where the person so seeking belongs to a section of the public) to other members of that section.
(2) The following are examples of the facilities and services mentioned in subsection (1)
(d) facilities for education;
(g) the services of any profession or trade, or any local or other public authority."
"Nothing in Parts II to IV shall render unlawful any act done in affording persons of a particular racial group access to facilities or services to meet the special needs of persons of that group in regard to their education, training or welfare, or any ancillary benefits."
"(1) Except as provided by this Act no proceedings, whether civil or criminal, shall lie against any person in respect of an act by reason that the act is unlawful by virtue of a provision of this Act.
(2) Subsection (1) does not preclude the making of an order of certiorari, mandamus or prohibition."
So far as material section 57 provides as follows:
"(1) A claim by any person ("the claimant") that another person ("the respondent")
(a) has committed an act ... against the claimant which is unlawful by virtue of Part III
may be made the subject of civil proceedings in like manner as any other claim in tort
(2) Proceedings under subsection (1)
(a) shall, in England and Wales, be brought only in a designated county court
but all such remedies shall be obtainable in such proceedings as, apart from this subsection and section 53(1), would be obtainable in the High Court "
"Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need
(a) to eliminate unlawful racial discrimination; and
(b) to promote equality of opportunity and good relations between persons of different racial groups."
It is common ground that the Governing Body is subject to this obligation.
"In this Part
(a) "religion" means any religion,
(b) "belief" means any religious or philosophical belief,
(c) a reference to religion includes a reference to lack of religion, and
(d) a reference to belief includes a reference to lack of belief."
Section 45 so far as material provides as follows:
"(1) A person ("A") discriminates against another ("B") for the purposes of this Part if on grounds of the religion or belief of B or of any other person except A (whether or not it is also A's religion or belief) A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances).
(2) In subsection (1) a reference to a person's religion or belief includes a reference to a religion or belief to which he is thought to belong or subscribe."
"It is unlawful for the responsible body of an educational establishment listed in the Table to discriminate against a person
(a) in the terms on which it offers to admit him as a pupil,
(b) by refusing to accept an application to admit him as a pupil "
Section 50(1) provides however, so far as material, that:
"Section 49(1)(a), (b) and shall not apply in relation to
(a) a school designated under section 69(3) of the School Standards and Framework Act 1998 (c. 31) (foundation or voluntary school with religious character) "
It is common ground that JFS is such a school.
The legal framework: racial discrimination the European dimension
"In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life." (emphasis added)
Article 2(1) provides so far as material that:
"States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:
(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;
(b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations;
(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;
(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization; "
Article 5 so far as material provides that:
"In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
(e) Economic, social and cultural rights, in particular:
(v) The right to education and training; "
The law what is "ethnic origin"?
"My Lords, I recognise that "ethnic" conveys a flavour of race but it cannot, in my opinion, have been used in the Act of 1976 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 key passage follows on pages 562-563:
"In my opinion, the word "ethnic" still retains a racial flavour but it is used nowadays in an extended sense to include other characteristics which may be commonly thought of as being associated with common racial origin.
For a group to constitute an ethnic group in the sense of the Act of 1976, 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 section 3(1): "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 Act of 1976 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.
Finally on this part of the argument, I think it is proper to mention that the word "ethnic" is of Greek origin, being derived from the Greek word "ethnos," the basic meaning of which appears to have been simply "a group" not limited by reference to racial or any other distinguishing characteristics: see Liddell and Scott's Greek-English Lexicon, 8th ed. (Oxford 1897). I do not suggest that the meaning of the English word in a modern statute ought to be governed by the meaning of the Greek word from which it is derived, but the fact that the meaning of the latter was wide avoids one possible limitation on the meaning of the English word.
My Lords, I have attempted so far to explain the reasons why, in my opinion, the word "ethnic" in the Act of 1976 should be construed relatively widely, in what was referred to by Mr. Irvine as a broad, cultural/historic sense. The conclusion at which I have arrived by construction of the Act itself is greatly strengthened by consideration of the decision of the Court of Appeal in New Zealand (Richmond P, Woodhouse and Richardson JJ) in King-Ansell v Police  2 NZLR 531."
"The real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins. That must be based on a belief shared by members of the group."
The other was at page 543:
"a group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock. It is that combination which gives them an historically determined social identity in their own eyes and in the eyes of those outside the group. They have a distinct social identity based not simply on group cohesion and solidarity but also on their belief as to their historical antecedents."
" This decision of the Industrial Tribunal is attacked on a number of grounds. Firstly, a question which had to be considered by the Industrial Tribunal was whether they had jurisdiction to deal with this matter at all. The point was quite rightly raised as to whether what had happened here was on the ground of Mr Seide's religion. If it was, then it appeared to be outside the provisions of the Race Relations Act. On the other hand, if it was on the ground of his race or ethnic origin then it would be within the ambit of the Act. Both sides accept and the Tribunal accepted that 'Jewish' could mean that one was a member of a race or a particular ethnic origin as well as being a member of a particular religious faith. The Tribunal, on that basis, found that what happened here was not because Mr Seide was of the Jewish faith but because he was a member of the Jewish race or of Jewish ethnic origin.
 It seems to us that their approach to this question was the right approach, as agreed by the parties, and that they were perfectly entitled to find on the facts of this case that Mr Garcia's remarks were on the basis of Mr Seide's race or ethnic origin."
Objections to the admissions policy: direct race discrimination
i) Jewish ethnic origins meaning those who are part of the Jewish ethnic group for the purposes of the 1976 Act in accordance with the approach taken in Mandla;
ii) Jewish descent meaning those who have a Jewish parent; and
iii) Jewish status meaning those who are recognised by Jewish law as being Jewish.
As he correctly submits, the fact that someone is of a particular "descent" or has a particular "status" at birth does not mean that that is their "ethnic origin." And he submits, correctly in my judgment, that there is discrimination "on racial grounds" only if it based on someone's Jewish ethnic origins and not if it occurs on grounds of Jewish status or Jewish descent.
i) Hypothetical 1: A has three Jewish grandparents who identified themselves as Jewish as a matter of ethnicity/culture. His maternal grandmother was not Jewish. For the purposes of the 1976 Act, A would be regarded as Jewish as a matter of descent and ethnic origins, but he would not be admitted to JFS, even if his mother has converted, unless her conversion is recognised as valid by the OCR.
ii) Hypothetical 2: B's mother converted to Judaism before he was born. The conversion was recognised as valid by the OCR. Some years later, and before B was born, she ceased any Jewish practices and no longer identified herself as Jewish as a matter of culture/ethnicity. B's father is not Jewish. B would be recognised as Jewish by the OCR and JFS but he would not be Jewish as a matter of blood/descent, having no biological ancestors who are Jewish. And if he did not identify himself as Jewish as a matter of culture/history/language he would also not be Jewish as a matter of ethnic origin.
iii) Hypothetical 3: C's maternal grandmother was Jewish (either by descent or conversion) but not any of his other grandparents. C would be regarded as Jewish by the OCR and JFS.
Other hypotheticals were offered during the course of argument by both Mr Oldham and Mr Jaffey but whilst illuminating, and reinforcing Mr Singh's analysis, they took the argument no further.
Objections to the admissions policy: indirect race discrimination
i) First, whether JFS's admission arrangements constitute, within the meaning of section 1A of the 1976 Act, a "provision, criterion or practice" which puts individuals of certain races or ethnic origins at a "disadvantage"?
ii) Secondly, if they do, can JFS's admission arrangements be justified as being, within the meaning of section 1A(c) a "proportionate means of achieving a legitimate aim"?
Objections to the admissions policy: breach of section 71
"It is the clear purpose of section 71 to require public bodies to whom that provision applies to give advance consideration to issues of race discrimination before making any policy decision that may be affected by them. This is a salutary requirement, and this provision must be seen as an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. It is not possible to take the view that the Secretary of State's non-compliance with that provision was not a very important matter. In the context of the wider objectives of anti-discrimination legislation, section 71 has a significant role to play."
"I do not accept that the failure of an inspector to make explicit reference to section 71(1) is determinative of the question whether he has performed his duty under the statute. So to hold would be to sacrifice substance to form."
But, as he said at para :
"The question in every case is whether the decision-maker has in substance had due regard to the relevant statutory need. Just as the use of a mantra referring to the statutory provision does not of itself show that the duty has been performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed To see whether the duty has been performed, it is necessary to turn to the substance of the decision and its reasoning."
Objections to the admissions policy: failure to reflect JFS's designated religious character
"The governing body of a maintained school shall, in discharging their functions, comply with
(a) the instrument of government."
"Religious character is not acquired or lost by virtue of being designated or not designated under the procedure set out in these Regulations. Designation is the recognition of a religious character which a school already has as a question of fact. Under the Act a school must first close if it wishes to acquire or change religious character."
As a matter of fact, JFS is an Orthodox Jewish school. Indeed, as Mr Oldham observes, that is precisely E's complaint.
Objections to the admissions policy: sub-delegation to the OCR / fettering of discretion
"when a power has been conferred to a person in circumstances indicating that trust is being placed in his individual judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another."
(Here the relevant functions and powers are those conferred on the Governing Body by sections 86 and 89 of the 1998 Act.) The present case, she submits, is a classic example of circumstances where a public law power to apply admissions criteria to a maintained school cannot fairly be delegated to an unaccountable private body itself not susceptible to judicial review, without what she calls patent unfairness which the law will not permit. Because the OCR is not amenable to judicial review, this delegation would have the effect, she says, of immunising entirely from challenge on public law grounds a decision even if the OCR had acted unfairly or had discriminated on racial grounds. The delegation, she says, was therefore unlawful.
"The principle does not amount to a rule that knows no exception; it is a rule of construction which makes the presumption that "a discretion conferred by statute is prima facie intended to be exercised by the authority on which the statute has conferred it and by no other authority, but this presumption may be rebutted by any contrary indications found in the language, scope or object of the statute". Courts have sometimes wrongly assumed that the principle lays down a rule of rigid application, so that devolution of power cannot (in the absence of express statutory authority) be valid unless it falls short of delegation. This has resulted in an unreasonably restricted meaning being given to the concept of delegation."
That analysis reinforces my assessment that the result for which Ms Rose contends is neither dictated by any legal rule or principle nor consistent with the practical realities of administering faith-based admissions criteria.
Objections to the admissions policy: breach of the School Admissions Code
"In drawing up their admission arrangements, admission authorities must ensure that the practices and the criteria used to decide the allocation of school places:
a) are clear in the sense of being free from doubt and easily understood. Arrangements that are vague only lead to uncertainty and this may reduce the ability of parents to make an informed choice for their children. They are also likely to increase the chances of an objection;
b) are objective and based on known facts. Admission authorities and governing bodies must not make subjective decisions or use subjective criteria;
c) are procedurally fair and are also equitable for all groups of children (including those with special educational needs, disabilities, those in public care, or who may be a young carer);
d) enable parents' preferences for the schools of their choice to be met to the maximum extent possible;
e) provide parents or carers with easy access to helpful admissions information ;
f) comply with all relevant legislation, including on infant class sizes and on equal opportunities, and have been determined in accordance with the statutory requirements and the mandatory provisions of this Code."
Paragraph 1.67 provides so far as material that:
"Admission authorities and governing bodies must ensure that their admission arrangements and other school policies are fair and do not disadvantage, either directly or indirectly, a child from a particular social or racial group, or a child with a disability or special educational needs."
Paragraph 1.71 provides so far as material that:
"Admission authorities must not use supplementary application or information forms that ask:
a) for any personal details about parents, "
Paragraph 1.72 provides so far as material that:
"Admission authorities must not discriminate against children whose parents fall into certain social groups. No personal information about parents is relevant in considering an application for a place at a school and criteria which focus on parents cannot legitimately be included as oversubscription criteria."
Paragraph 1.76 (which is headed 'faith schools') provides that:
"At faith schools, the prohibition in paragraph 1.71 does not prevent the use of a supplementary form that asks parents or children about their membership of or relationship with the church or religious denomination in accordance with paragraphs 2.41 to 2.53 of this Code."
Paragraph 2.13 provides so far as material that:
"In setting oversubscription criteria the admission authorities for all maintained schools must not:
e) give priority to children according to the background of their parents; "
"It is unlawful under section 49 of the Equality Act 2006 for maintained, nonmaintained or independent schools to discriminate against a child on the grounds of the child's religion or belief in the terms on which it offers to admit him as a pupil or by refusing to accept an application for a place at the school. However, those schools designated by the Secretary of State as having a religious character (faith schools) are exempt and are permitted to use faith-based oversubscription criteria in order to give higher priority in admissions to children who are members of, or who practise, their faith or denomination. This only applies if a school is oversubscribed."
Paragraph 2.42 provides so far as material that:
"Faith-based oversubscription criteria must be framed so as not to conflict with other legislation, such as equalities and race relations legislation "
Paragraph 2.43 provides so far as material that:
"As with all oversubscription criteria, those that are faith-based must be clear, objective and fair. Parents must easily be able to understand how the criteria will be satisfied. It is primarily for the relevant faith provider group or religious authority to decide how membership or practice is to be demonstrated, and, accordingly, in determining faith-based oversubscription criteria, admission authorities for faith schools should only use the methods and definitions agreed by their faith provider group or religious authority "
Paragraph 2.46 provides so far as material that:
"Published admission arrangements must make clear how membership or practice is to be demonstrated in line with guidance issued by the faith provider group or religious authority. Whatever method is used it must be clearly objective and transparent "
Paragraph 2.47 provides that:
"Religious authorities may provide guidance for the admission authorities of schools of their faith that sets out what objective processes and criteria may be used to establish whether a child is a member of, or whether they practise, the faith. The admission authorities of faith schools that propose to give priority on the basis of membership or practice of their faith should have regard to such guidance, to the extent that the guidance is consistent with the mandatory provisions and guidelines of this Code."
Paragraph 2.48 provides so far as material that:
"Admission authorities for faith schools should consider how their particular admission arrangements impact on the communities in which they are physically based and those faith communities which they serve."
Objections to the admissions policy: admission criteria unclear and unfair in relation to conversion
i) E's evidence of what he was told by Rabbi Rashi Simon of the OCR, namely that the OCR would recognise only conversions preceded by a course of study, religious instruction and observance which took several years, and that it would only be on completion (or very rarely at the very end) of this process that the OCR would even consider recommending a child for JFS.
ii) The absence of any mention in JFS's submission to the Appeal Panel of the "test" of Jewish status addressing the circumstances of would-be or partial converts.
iii) The confirmation by JFS before the Schools Adjudicator that no students had been admitted to JFS under this provision.
iv) The response by JFS dated 17 December 2007 to the questionnaire pursuant to section 65(2) of the Race Relations Act 1976 served by E as part of the pre-action letter dated 17 August 2007. In answer to the question how many children admitted to JFS in the last three years were not Halakhically Jewish but had embarked upon an approved course of conversion, the answer was "Information not gathered but believed to be none."
Objections to the Appeal Panel's conduct: misdirection as to jurisdiction
"The appeal committee's duty is, of course, to determine the merits of individual appeals. The idea that it can do so without some reference to the lawfulness of the arrangements made by the LEA is, however, unrealistic. An appeal committee is not obliged to treat those arrangements as if set in stone and beyond challenge. They may lack clarity or, as in this case, be unlawful. Mr McManus accepted, in the course of argument, that the appeal committee should not be obliged to enforce arrangements which were contrary to basic human rights or were racially or sexually discriminatory. Whether they do so offend, involves a legal judgment by the appeal committee but I cannot agree that, as a matter of jurisdiction, the appeal committee is disentitled from considering legal issues."
He added at page 524:
"An appeal committee is not obliged slavishly to apply unlawful LEA arrangements The difficulty of defining the jurisdiction of an appeal committee which is intended to reassure parents by virtue of its independence is plain. There is no simple answer to the conflict which may follow from a wish to create, on the one hand, a quasi-judicial procedure which aggrieved parents may use and, on the other hand, a procedure which does not interfere unduly with the needs of good administration Good sense can be expected of committees in their approach to LEA arrangements. A committee is not obliged to ignore illegality if the merits of a particular case require adherence to legality."
Peter Gibson LJ agreed, saying at page 526:
"I do not see how one can properly distinguish between some illegalities and other illegalities. If it is permissible for the appeal committee to consider some questions of law, I cannot think that there can be any objection in principle to the committee considering other questions of law relevant to the appeal. Having said that, I fully recognise the practical difficulties to which Laws LJ rightly draws attention in his judgment. The primary function of the appeal committee is to determine the merits of the particular appeal. The appeal committee plainly has no power to quash the council's policy decision, but if the point had been taken (which it was not) on the appeals in respect of the appellants that the admissions procedure was unlawful , I take the view that the appeal committee could not shut its eyes to that fact; nor could a fresh appeal committee do so. In each case it would have had to consider the effect of that illegality on the appeal before it."
Laws LJ, as will be seen, took a rather different position.
"In order for a panel to determine that an admission authority's decision to refuse admission was unreasonable, it will need to be satisfied that the decision to refuse to admit the particular child was "perverse in the light of the admission arrangements", i.e. it was "beyond the range of responses open to a reasonable decision maker" or "a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it". Panels must not analyse whether the admission arrangements themselves or the process which led to those arrangements being adopted were unreasonable or unlawful as these are matters for the Schools Adjudicator or the Secretary of State to consider separately."
Objections to the Appeal Panel's conduct: procedural unfairness
i) First, in failing to give him notice of the Governing Body's response to the appeal in advance of the hearing, contrary to paragraph 4.29 of the School Admission Appeals Code of Practice 2003 and to the undertaking given in the letter of 19 May 2007. Paragraph 4.29 provides that:
"Admission authorities should make clear the grounds under which the appeal is to be considered to enable parents to prepare their appeal e.g. outlining the limited scope under which an infant class appeal may be upheld. For admissions to infant classes, if it is not clear, parents should be advised to prepare both on class size "prejudice" grounds and normal "prejudice" grounds."
ii) Secondly, in failing to notify him in advance that he could appeal on social or medical grounds (a matter, says Ms Rose, which appeared contrary to the terms of JFS's admissions policy on an initial reading). In this regard Ms Rose points to paragraphs 4.8, 4.26 and 4.29 of the Appeals Code of Practice as placing responsibility for drawing attention to potential grounds of appeal upon the school, not the parent, and, moreover (paragraph 4.28), at least five working days before the hearing.
iii) Thirdly, in failing to give him any or any adequate opportunity to make submissions or provide evidence in support of such grounds, informing him that any evidence which he wished to put in to support such a ground had to be available in less than 24 hours after the hearing.
Consequently, says Ms Rose, the Appeal Panel acted unfairly by failing to give E a full and fair hearing of all his grounds of appeal.
i) Whilst the Governing Body's delay was unfortunate, E declined the offer of an alternative date when he told the Appeal Panel that he had not seen the document. Moreover, since the grounds of appeal were entirely an attack on the lawfulness of the admissions policy this, Mr Oldham says, was the key feature of the appeal it was bound to fail since the policy was lawful and in any event its lawfulness was not a matter for determination by the Appeal Panel. In short, E has suffered no prejudice from what happened.
ii) E had chosen not to raise this as a ground of appeal, though given an entirely open opportunity to express his grounds of appeal as he wished. In raising it with him the Appeal Panel went further than it needed to. It was not for the Appeal Panel to suggest grounds of appeal.
iii) In the event E was able to deal fairly with all the relevant matters. During the hearing itself he addressed the Appeal Panel at some length about M's particular needs. He availed himself of the opportunity to make further submissions, sending a letter dated 5 June 2007 (though it took matters little if at all further). And even now E has failed to explain what more information he could and would have supplied if given more time or what difference it would or might have made to the outcome.
Other defences delay etc
Other defences sections 53 and 57
Appendix A the intervention of the BHA
i) First, and in this respect he submits that the BHA falls into the same error as E, it assumes that religious status must depend on belief and observance. This, he says, is wrong.
ii) Secondly, as he points out, the BHA's case relies entirely upon Article 2 of Protocol 1 to and Article 14 of the Convention, yet it is trite, as he says, that all Article 2 establishes is a right to attend a school providing a minimum form of education provided by the state. It does not give a right to attend any particular type of school, let alone a particular school: see A v Head Teacher and Governors of Lord Grey School  UKHL 14,  2 AC 363, and R (SB) v Governors of Denbigh High School  UKHL 15,  1 AC 100. So there is, he says, not the beginnings of a case of infringement of E's or M's rights under the Convention not that that of course is any part of E's own case because M can still be educated at some school other than JFS.
iii) Thirdly, he says that JFS takes exception to the attempted analogy an abusive and deeply offensive analogy with a white supremacist church in South Africa. This, he says, is a measure of just how misplaced the BHA's contentions are.
Appendix B The Nuremberg Laws
i) the Reich Citizenship Law of 15 September 1935;
ii) the Law for the Protection of German Blood and German Honour also of 15 September 1935; and
iii) the First Supplementary Decree of 14 November 1935.
I have also received written submissions from Ms Rose dated 27 March 2008, from Mr Singh dated 7 April 2008 and from Mr Oldham also dated 7 April 2008 and a letter from the United Synagogue's solicitors dated 8 April 2008 (each of the latter expressing their agreement with Mr Singh's submissions).
"The Nuremberg Laws provide a disturbing and important illustration of the point that no proper distinction can or should be drawn between the three concepts identified by the Secretary of State" that is, discrimination on the grounds of Jewish ethnic origins, discrimination on the grounds of Jewish status and discrimination on the grounds of Jewish descent "Discrimination against a person (or in their favour) on grounds of their Jewish status, Jewish ethnic origins or Jewish descent constitutes direct race discrimination: the three concepts are closely intertwined and overlapping, and are not capable of being distinguished on any principled basis which accords with the normal use of language, or with public policy."
"(1) A Jew is an individual who is descended from at least three grandparents who were, racially, full Jews (2) A Jew is also an individual who is descended from two full-Jewish grandparents if: (a) he was a member of the Jewish religious community when this law was issued, or joined the community later; (b) when the law was issued, he was married to a person who was a Jew, or was subsequently married to a Jew; (c) he is the issue from a marriage with a Jew, in the sense of Section 1, which was contracted after the coming into effect of the Law for the Protection of German Blood and Honour of September 15, 1935; (d) he is the issue of an extramarital relationship with a Jew, in the sense of Section 1, and was born out of wedlock after July 31, 1936."
Article 2(2) analogously defined those whom the Nazis referred to as Mischlings as follows:
"An individual of mixed Jewish blood is one who is descended from one or two grandparents who, racially, were full Jews, insofar that he is not a Jew according to Section 2 of Article 5. Full-blooded Jewish grandparents are those who belonged to the Jewish religious community."
So, says Ms Rose, the Nuremberg laws defined Jews primarily on the basis of their descent from Jewish grandparents.
"The first attempt to give a precise definition of the "chief enemy" of the Third Reich" this is a reference to the First Supplementary Decree "revealed the totally pseudoscientific nature of its racist doctrines and the charlatanism of the "scientists" associated with them. The definition also exposed the hollowness of the constantly reiterated claim that race as such was "not a political, but rather a biological concept.""
Referring to the definition in Article 5(2) of the First Supplementary Decree the author continues:
"Thus, racial categorisation depended in such cases on the religion one practiced or on one's spouse; but the situation became even more confused if the "crossbreed" also happened to be a foreigner In such instances, race was determined not by religion but by nationality.
In general, the whole question of racial categorization was beset with insoluble contradictions Commentaries on the race laws appealed to readers to remember that there should be "no confusion of the concepts of race and religion! Only the race of the grandparents is decisive!" However, this failed to alter the fact that the wording of the law itself unmistakably declared religion as the crucial factor."