R (E) v JFS Governing Body

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Sedley
Judgment Date25 June 2009
Neutral Citation[2009] EWCA Civ 626
Docket NumberCase No: No.1 C1/2008/2187 & No.2 C1/2008/2188 No.2 CO/11587/2007

[2009] EWCA Civ 626

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

THE HON. MR JUSTICE MUNBY

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Before:

Lord Justice Sedley

Lady Justice Smith and

Lord Justice Rimer

Case No: No.1 C1/2008/2187 & No.2 C1/2008/2188

No.1 CO/7896/2007

No.2 CO/11587/2007

Between
No.1 the Queen on the Application of E
Appellant
and
(I) The Governing Body of JFS
(Ii) The Admissions Appeal Panel of JFS
Respondents
and
(I) The Secretary of State for Education
(Ii) The London Borough of Brent
(Iii) The Office of the Schools Adjudicator
Interested Parties
and
The United Synagogue
Intervener
and
Between
No.2 the Queen on the Application of E
Appellant
and
The Office of the Schools Adjudicator
Respondent
and
(Iv) The Governing Body of Jfs
(V) The London Borough of Brent
(Vi) David Lightman
(Vii) Kate Lightman
Interested Parties
and
(Viii)The British Humanist Association the United Synagogue
Interveners

Ms Dinah Rose QC and Ms Helen Mountfield (instructed by Messrs Bindmans) for the Appellant in both cases

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

Lord Justice Sedley

Lord Justice Sedley :

This is the judgment of the court.

The appeal in summary

1

M is the child of a father, E,who is Jewish by birth and of a mother who is Jewish by conversion. He would like to be admitted as a pupil to JFS (formerly the Jews' Free School) in the London Borough of Brent. The school is oversubscribed and is therefore entitled to select pupils according to its admissions policy, provided the policy is lawful. The present policy is to give priority to children who are recognised as Jewish by the Office of the Chief Rabbi (the OCR) or are following a course of conversion approved by the OCR.

2

The OCR does not recognise the validity of M's mother's conversion to Judaism because it was conducted in a Progressive and not an Orthodox synagogue. M, who is not following a course of conversion, is accordingly not eligible for admission to JFS. Since a child is regarded by the OCR (and others) as Jewish only if his or her mother is Jewish, M has been refused admission to the school.

3

It is E's case that being a Jew, whether by descent or by conversion, is a question of ethnicity, with the result that to refuse a child admission to a school because his mother is not Jewish constitutes direct race discrimination against him, on the ground both of his own and of his mother's ethnicity. If, however, the criterion is applied in such a way that the discrimination is indirect, it is E's alternative case that it has no legitimate aim, since the purpose is to make a purely ethnic distinction, and so is equally unlawful. In either case it is argued that the religious motive for such discrimination makes it no less unlawful.

4

JFS as respondent, the Secretary of State for Children, Schools and Families as an interested party and the United Synagogue as an intervener contest both claims. They say that the criterion itself is a purely religious, not a racial, one and that its admittedly disparate racial impact is justified by the lawful designation and ethos of the school as Jewish.

5

For the reasons set out in this judgment, the conclusion of the court is that the requirement that if a pupil is to qualify for admission his mother must be Jewish, whether by descent or by conversion, is a test of ethnicity which contravenes the Race Relations Act 1976. If the discrimination is direct, as we consider it is, it cannot be justified. If, contrary to this finding, the discrimination is indirect, we consider its purpose to be selection on the basis of ethnicity and therefore not to constitute a legitimate aim.

The procedural background

6

Two claims for judicial review have been brought on M's behalf. The principal one is against the school governors for failing to offer him a place, against the school's appeals panel for upholding the refusal, and against both for failing to comply with the “due regard” duty imposed by s.71 of the Race Relations Act. The essential ground of the first two challenges is that both refusals were acts of racial discrimination.

7

The second claim is against the Schools Adjudicator for rejecting E's objection to JFS's admission arrangements for 2008/2009 when, it is contended, he should have found the exclusionary aspect of the admissions policy to be unlawful. Of the other defendants to this claim, the London Borough of Brent, which was a defendant in the first judicial review and an interested party in the second, supported the claim in writing in the Administrative Court but did not participate any further in the proceedings. The claim is supported by Mr and Mrs L, who were named as an interested party in the second judicial review, and whose daughter had been refused admission to JFS because, although Mrs L is a convert to orthodox Judaism, her conversion is not recognised by the OCR because her husband is a cohen, a member of the priestly caste.

8

In a careful and detailed judgment [2008] EWHC 1535/1536 (Admin), which should be read together with this one, Munby J rejected both sets of claims, save that he found the school to have been in breach of its “due regard” duty under s.71. The wealth of relevant information in his judgment enables us to make this one much shorter than it would otherwise be.

9

In this court the parties, by agreement and with the court's approval, have confined themselves to the generic question whether the school's oversubscription admission criteria are unlawfully discriminatory. A number of consequential issues raised by the proceedings described above will fall to be canvassed and if necessary decided in the light of our judgment on this fundamental question.

The law

10

The law today forbids both racial and religious discrimination. But faith schools are exempted from the prohibition of religious discrimination because their purpose is to educate children in what are generally the religious beliefs of their parents, a right recognised by article 2 of the First Protocol to the European Convention on Human Rights. Where a faith school is a voluntary aided school, as JFS is, and so maintained by public funding, its religious character has to be designated by the Secretary of State (School Standards and Framework Act 1998, s.69). The official designation of JFS's religious character is “Jewish”.

11

The school's governing body, which is responsible for admissions, is required to act in accordance with the school's instrument of government (Education Act 2002, s.21(4)). JFS's instrument of government contains no express admission criteria but includes this statement of the school's 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 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.”

12

So long as a maintained faith school is undersubscribed, it cannot use religious criteria to allocate places. But once it is oversubscribed, it can lawfully restrict entry to children whom, or whose parents, it regards as sharing the school's faith. This is not by reason of an affirmative enactment, but because such schools are exempted from the prohibition of discrimination on grounds of religion or belief contained in Part 2 of the Equality Act 2006 (see s.50(1)(a)).

13

No school, however, is permitted to discriminate in its admissions policy on racial grounds. Such discrimination is forbidden by the Race Relations Act 1976 as amended. It is necessary to set out the exact terms in which this is done.

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...

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