R (E) v JFS Governing Body
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 03 July 2008 |
| Neutral Citation | [2008] EWHC 1535 (Admin) |
| Date | 03 July 2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7896/2007 |
[2008] EWHC 1535 (Admin)
[2008] EWHC 1536 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Munby
Case No: CO/7896/2007
Case No: CO/11587/2007
Ms Dinah Rose QC and Ms Helen Mountfield (instructed by Bindman & Partners) for the claimant (E)
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)
I have before me two applications for judicial review which raise important questions as to the relationship between religious law and secular law – in this particular instance, secular discrimination law as embodied in the Race Relations Act 1976.
These questions arise in the context of a dispute within our Jewish community about the propriety and legality of the criteria governing admission to a well-known Jewish school in London, JFS, formerly the Jews' Free School. The issues and the outcome are therefore of great importance for the various sections of the Jewish community. But they are also important to people of all religions, not least because they impact potentially upon 'faith schools' of all faiths and denominations.
The factual background
On one level the facts are both straightforward and, in large measure, not contentious. But to understand the way in which the important point at the heart of this litigation arises, it is necessary, and not least for the assistance of a secular audience, to set out in some detail various matters to do with the Jewish community and the Jewish faith, before turning to the events which have given rise to the proceedings.
The content of a religious faith and the nature of its beliefs, observances and practices is, for a secular court, a matter of fact to be proved in the usual way by evidence. The court is not concerned to assess the validity of such matters, let alone to adjudicate on religious controversies within a religious community or between different religious communities (see further below). For the court, therefore, religion is simply a matter of fact – the fact of what an individual or a number of individuals or a community believe, profess or practice – and not a matter of belief. That said, the court must be sensitive to the fact that religious belief, observance and practice is central to the lives (here, and some believe hereafter) of countless people, whose beliefs are accordingly entitled to great respect; not least where, as in the present case, the beliefs are those of one of the oldest, greatest and most respected of the world's great religions. I trust, therefore, that I have correctly understood the evidence on these matters which has been put before me and that nothing I say will cause – what is certainly not intended – any offence to any section of the Jewish or any other community.
Before turning to the evidence there is one other point I must make. It is a feature of a number of religions that there are differences of view as between those who believe themselves to be members of or adherents to that religion as to what the criteria for membership or adherence are and, accordingly, as to who is or is not a member of or adherent to that faith. X, Y and Z may each in good conscience believe that he or she is a member of or adherent to the A faith, in circumstances where although X accepts that Y is a member of or adherent to the A faith (and vice versa) neither accepts that Z is, even though it may be that Z is willing to afford to X and Y the recognition of a shared faith which X and Y are unable to extend to Z. These are not matters which a secular court can adjudicate upon, yet practical convenience demands that a secular court, if only for descriptive purposes, uses the same language as the protagonists, even where they cannot agree between themselves.
As will become apparent, the religious issue at the heart of this controversy – though not, I emphasise, a matter for determination by me – is the answer to the question, Who is a Jew? And, as will also become apparent, that is not a matter on which all those who conscientiously believe themselves to be Jews agree. I emphasise the point to make clear that my use hereafter of the word Jew necessarily takes its flavour from the particular context. Although I have tried always to make clear the particular sense in which I am using the word, I make clear that I do not necessarily use it in the sense in which any particular section of those who consider themselves to be part of the Jewish community would use it. This is unavoidable. I trust that it will be understood and cause neither misunderstanding nor offence.
The factual background: the British Jewish community
I turn therefore to the evidence I have about the British Jewish community.
The Report of the Commission on Representation of the Interests of the British Jewish Community, A Community of Communities, published in March 2000 under the auspices of the Institute for Jewish Policy Research, estimates that of the Jewish population in the United Kingdom (estimated in 1996 to have numbered 283,000) approximately 70% are formally linked to a synagogue whilst the other 30% are religiously unaffiliated. It comments that "religious life today is more diverse than it was during the first half of the twentieth century." Until the 1940s over 97% of synagogue membership was of Orthodox (United Synagogue) synagogues. Current membership of British Jews affiliated to a synagogue, according to the Report, is distributed as follows:
The factual background: Jewish law and belief
| Orthodox | 60.7% |
| Progressive (Reform and Liberal) | 27.3% |
| Strictly Orthodox (Haredi) | 10.5% |
| Masorti (Conservative) | 1.5% |
Evidence of Orthodox Jewish law and belief has been provided by David Frei, Registrar of the London Beth Din (Court of the Chief Rabbi), in a letter to the Treasury Solicitor dated 5 February 2008 and in a witness statement dated 6 February 2008, and by Dayan Menachem Gelley, the Senior Dayan of the London Beth Din, in a witness statement dated 26 February 2008. I should add that the Chief Rabbi, Sir Jonathan Sacks, associates himself expressly with Dayan Gelley's evidence, saying in a letter dated 26 February 2008 written to the Treasury Solicitor:
"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."
Evidence of Reform, Liberal and Masorti Jewish law and belief has been provided by, respectively, Rabbi Dr Tony Bayfield, Head of The Movement for Reform Judaism, in a letter to the Treasury Solicitor dated 7 February 2008, Rabbi Danny Rich, Chief Executive of Liberal Judaism, in a letter to the Treasury Solicitor dated 31 January 2008, and Michael Gluckman, Executive Director of The Assembly of Masorti Synagogues, in a letter to the Treasury Solicitor dated 5 February 2008.
This material is of great significance and interest but for present purposes can be summarised, I hope accurately, comparatively briefly.
The factual background: Jewish law and belief – Orthodox Judaism
Dayan Gelley characterises Orthodox Judaism as "the formulation of Judaism which its adherents believe is an accurate interpretation and application of the laws and ethics that derive from the Torah. In this context the " Torah" means both the Written Torah and Oral Torah." He continues:
"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...
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