The difficulty of the JFS case, said Lord Mance, one of the Supreme Court judges who dismissed the school’s appeal, “is that the word ‘Jewish’ may refer to a people, race or ethnic group and/or to membership of a religion”.
Lord Pannick QC, for JFS, tried to persuade the court that it was only the latter — and that its definition was a matter of Jewish law alone.
But the problem he faced was the Race Relations Act 1996. This bans discrimination not just on grounds of race but also on grounds of ethnic or national origins.
As Lady Hale said, no-one was accusing JFS of being “racist” in the popular sense of that term. But the question was whether JFS used selection criteria that treated pupils differently because of their ethnic origins.
She and the four other judges in the majority agreed with Dinah Rose QC that the school had done so in the case of the boy known as M. He had been denied admission to JFS, “because of his mother’s ethnic origins, which were Italian and Roman Catholic”.
Lord Rodger, one of the judges in the minority, was scathing about Lady Hale’s view that M had been rejected by JFS because of his mother’s ethnic origins.
M’s mother “could have been as Italian in origin as Sophia Loren and as Roman Catholic as the Pope for all that the governors cared: the only thing that mattered was that she had not converted to Judaism under Orthodox auspices,” the judge said.
And he had little time for the majority’s “expressions of sympathy” towards the school governors. His fellow judges’ remarks seemed rather “out of place” if the governors had been “doing exactly what the Race Relations Act existed to forbid”.
“The decision of the majority,” said Lord Rodger, “means that there can in future be no Jewish faith schools which give preference to children because they are Jewish according to Jewish religious law and belief.”
In Lord Rodger’s view, “the majority’s decision leads to such extraordinary results, and produces such manifest discrimination against Jewish schools in comparison with other faith schools, that one can’t help feeling that something has gone wrong.”
Lord Rodger was supported by Lord Brown, himself of Jewish descent. Lord Hope and Lord Walker would have held that JFS was guilty, not of direct discrimination, but of indirect discrimination.
But the five judges in the majority still concluded that JFS had directly discriminated against M on grounds of his ethnic origins.
Lord Phillips, the court’s president, whose maternal grandparents were Sephardic Jews from Alexandria, explained that “grounds” in this context meant the factual criteria that had debarred M from entry, not the school’s religious motives.
A person’s motives were irrelevant in these circumstances, said Lord Phillips. The critical question was whether the requirements of Jewish law were “racial” in the sense that they defined those who satisfied them by reference to their ethnic or national origins.
The judgment runs to 90 pages, with each member of the court delivering a separate ruling. Several of the judges display a confident command of Jewish law, with Lord Phillips quoting four verses of Deuteronomy and other judges using phrases such as “halachically Jewish”.
John Halford, the solicitor from Bindmans who acted for M and his father, saw the ruling as an “unprecedented opportunity for community reconciliation”. He thought that Jewish schools could now prioritise applications from those “whose families are sincere in their faith or even for those who sincerely seek a Jewish education for their children”.
In reality, though, the ruling creates more problems for the Jewish community than it solves. During the past six months, Jewish schools have had to apply a religious practice test, based partly on synagogue attendance.
This requirement for “outward manifestations of religious practice” was dismissed by Lord Brown as a “non-Jewish definition of who is Jewish”.
It was Christianity, he said, that required a focus on outward acts of religious practice and declarations of faith.
The judge noted that: “Jewish schools, designated as such by the minister and intended to foster a religion which for 3000 years has defined membership largely by reference to descent, will be unable henceforth even to inquire whether one or both of the applicant child’s parents are Jewish.”
But it gets worse. According to Lord Phillips, the JFS religious practice test for admission next year, which includes “synagogue attendance, Jewish education and/or family communal activity”, may well amount to indirect discrimination in favour of those who satisfy the matrilineal descent test, and might therefore have to be justified if questioned in the courts.
It was Lord Brown who best summed up a case that the Supreme Court would clearly rather not have heard.
“Can a Jewish faith school ever give preference to those who are members of the Jewish religion under Jewish law?” he asked.
In his view, it could. “To hold the contrary would be to stigmatise Judaism as a directly racially discriminating religion. I would respectfully disagree with that conclusion. Indeed I would greatly regret it.”
There is some evidence that this regret was shared by the majority. They apparently felt that they were bound by legislation to rule against JFS. Lord Rodger and Lord Brown would have found a way round it.