I was not surprised at the judgment of the Supreme Court that — in initially rejecting the application made on behalf of the child “M”— JFS and its religious authority, Chief Rabbi Lord Sacks, had contravened the 1976 Race Relations Act.
It has to be said at the outset that the advocacy of the counsel representing “M”, Dinah Rose QC, was brilliant. Calmly and methodically, Ms Rose demolished the disingenuous arguments put forward by Lord Pannick on behalf of JFS.
More than that, she reminded the court that what was at the centre of this case was the education of a child — or rather, children. It was their future that was at issue here, not the reputation of Lord Sacks, his ecclesiastical court, or the honorary officers of the United Synagogue.
Within hours of the announcement that JFS had lost its appeal, the appellants rushed out statements belittling the gravity of the Supreme Court’s verdict. Lord Sacks spoke of the “closeness” of the judgment. JFS declared that the appeal had been lost “by the narrowest of margins.”
What the Supreme Court decided was that JFS had “directly” discriminated against “M” on the grounds of his ethnic origin. Now it is true that the nine justices of the Supreme Court charged with hearing the appeal reached this verdict by five votes to four. But two of the minority justices declared that they would nonetheless have dismissed the appeal on the grounds of “indirect” discrimination.So the truth is that seven of the nine Supreme Court justices found that, one way or the other, JFS had breached the 1976 Act.
Indeed, of all the judges who have heard this case at its various stages, no less than 10 — out of 13 — have found in favour of “M”. That is hardly the narrowest of margins.
In its judgment, the Supreme Court exonerated the appellants from the charge of moral turpitude. Lord Clarke declared that nothing in the reasoning that had led him to dismiss the appeal had been “based on the view that the Chief Rabbi or JFS acted in a racist way.” Lord Phillips, president of the Court, said in announcing the Court’s verdict that the fact that the appeal was being dismissed did not mean that “those responsible” for JFS’s admissions policy had acted in a way that was “racist as that word is generally understood.”
The recording of sentiments such as these may certainly be regarded as acts of extraordinary compassion. But I am afraid they cannot detract from the gravity of the offence. No matter which way you look at it, the decision to reject “M” was based, squarely and unashamedly, on a view taken of M’s mother. “The fact that the rule adopted was of a religious character,” said Lord Clarke, “cannot obscure or alter the fact that the content of the rule itself applies a test of ethnicity.”
No amount of verbal squirming and semantic wriggling by Lord Pannick and his team was ever going to conceal this truth.
That their clients chose not to cut their losses at a much earlier stage, far from being praiseworthy in any sense, strikes me as the height of communal irresponsibility.
Lord Phillips surely spoke from the heart when he declared that the Supreme Court had not “welcomed being required to resolve this dispute.” The truth is, this case should never have come to court. “M” could have been admitted quietly, without fuss. Or he could have been legitimately rejected (as was my own nephew, incidentally) on the grounds that the school was heavily oversubscribed.
Lord Sacks and his Beth Din could have chosen not to indulge in a power struggle with the chief rabbinate of Israel over the status of Israeli conversions — a contest they were bound to lose. Left to itself, I doubt that JFS would have fought this case. Now it has been left to pay the bulk of the costs.
It is now being said that matters can be resolved by a change in the law. I must counsel, in the strongest possible terms, against such a move, which could only prolong the public opprobrium that this case has brought upon the whole of British Jewry.
Besides, as the wise Lord Phillips helpfully pointed out (at paragraph 50 of his judgment), it is actually open to JFS to apply, legally, a test of religious practice “that will indirectly discriminate in favour of those who satisfy the matrilineal descent test.” What could be simpler?