A majority of the lords who ruled against JFS suggested that the law on direct discrimination may be flawed.
JFS lost its appeal over its admissions procedure today on the grounds of direct discrimination by a majority of five to four. The appeal follows an earlier judgement by the Court of Appeal which found that JFS had directly discriminated by refusing a place to a boy (Child M) whose mother had converted under a non-Orthodox synagogue and was therefore not recognised by the United Synagogue.
The judgment read: “The Supreme Court has dismissed the appeal by the Governing Body of JFS.
“On the direct discrimination issue, the decision was by a majority of five to four.
“The majority held that JFS had directly discriminated against M on grounds of his ethnic origins.”
The decision of the majority 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. Lord Rodger
Lord Phillips, Lady Hale, Lord Mance, Lord Kerr and Lord Clarke voted against the appeal and Lord Hope, Lord Rodger, Lord Walker and Lord Brown voted to uphold the appeal.
But Lord Rodger said in his dissenting judgement: “The decision of the majority 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.
“Jewish schools will be forced to apply a concocted test for deciding who is to be admitted [that] has no basis whatsoever in 3,500 years of Jewish law and teaching.
“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.”
Lady Hale added that there may be a good case for allowing Jewish schools to adopt criteria “which they believe to be required by religious law even if these are ethnically based.
“But if such allowance is to be made, it should be made by Parliament and not by the courts’ departing from the long-established principles of the anti-discrimination legislation.”
She suggested that the mechanism for introducing such change might be through the Equality Bill which is currently making its way through the House of Lords.
A statement by the Board of Deputies said that it would immediately explore the possibility of a legislative change.
It said: “We will be exploring, as a matter of urgency and after consultation across the community, the possibility of a legislative change to restore the right of Jewish schools of all denominations to determine for themselves who qualifies for admission on the basis of their Jewish status, which we consider to be a fundamental right for our community and one with which the members of the Supreme Court had great sympathy.”
The Chief Rabbi Lord Sacks said he “welcomed” the suggestion that the issue may merit legislative remedy.
He added: “These matters require careful reflection and consultation, and instant reactions would be inappropriate. Our office will be working closely together with the schools, the United Synagogue, the Board of Deputies and other interested parties to consider the implications of the verdict before making a full response.”
The Lords all agreed that there should be no suggestion that JFS or Office of the Chief Rabbi (OCR) acted in a “racist” way.
Lord Clarke said: “I wish to stress that nothing in the reasoning which has led me (or I believe others) to the conclusion that the criteria adopted by JFS discriminated against applicants on ethnic grounds is based on the view that the Chief Rabbi, the OCR or JFS acted in a racist way.”
The court unanimously allowed in part the United Synagogue’s appeal on costs and ruled that the US must pay 20 per cent of the father’s costs from the Court of Appeal but not those incurred in the High Court, which must be paid by JFS in addition to the 50 per cent it has already been ordered to pay.”
Watch the video of the JFS judgement in full here.