“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.”
“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.”
“Education about the Jewish faith is considered by Orthodox Jews to be a fundamental religious obligation on all Jews. A person may be Jewish, but the Jewish faith is complex and often demanding. An understanding and appreciation of the Jewish faith takes many years to cultivate, through learning, debate and thinking. This is one of the primary purposes of schools such as JFS, which seek to help those who are Jewish (or who are undergoing conversion) understand, learn about and follow their faith.”
“A convert’s state of mind at the moment of conversion (ie immersion in a mikveh) is absolutely vital to the validity of an Orthodox conversion. If, for example, the convert was prepared to accept some or even most of the laws of Orthodox Judaism, but was not prepared to accept certain laws or even one law (eg the laws concerning Sabbath observance or the dietary laws) the conversion would be invalid because the convert was unwilling to accept the Orthodox Jewish faith in its entirety at the moment of conversion. Indeed, it is a well established point of Jewish Law that if a Beth Din discovers new information relevant to the time of a conversion, it should consider whether the conversion was valid, even if the conversion was not recent or took place in a different jurisdiction.”
“Citizenship in liberal democracies is a secular concept. Conversion, by contrast, is irreducibly religious … It involves the adoption of a religious way of life. Secular conversion to a religious identity is logically impossible. The nature of this religious dimension can be summed up in two Hebrew words: kabbalat hamitzvot, acceptance of the commands. This can be construed strictly or leniently. Conversion is an unusual case in which the rigor of the law is left to the discretion of the court. But the condition exists, however construed. Conversion must involve acceptance of the commands. If a convert, by his or her behaviour, demonstrates a genuine commitment to Jewish law and practice at the time of conversion, it remains valid even if he or she later abandons it. A lapsed convert is a lapsed Jew, not a lapsed gentile. If, however, there was no significant religious observance at the time, the conversion is void. Acceptance of the commands is constitutive of conversion. Without it, conversion cannot be said to have taken place. Converting to Judaism is a serious undertaking, because Judaism is not a mere creed. It involves a distinctive, detailed way of life. When people ask me why conversion to Judaism takes so long, I ask them to consider other cases of changed identity. How long does it take for a Briton to become an Italian, not just legally but linguistically, culturally, behaviourally? It takes time. The analogy is imperfect, but it helps to explain the most puzzling aspect of conversion today: the sometimes different standards between rabbinical courts in Israel and Britain. Several decades ago an Israeli Chief Rabbi argued that Israeli rabbinical courts should be more lenient than their counterparts in the Diaspora. His reasons were technical, but they make sense. It is easier to learn Italian if you are living in Italy. In Israel, many aspects of Jewish identity are reinforced by the surrounding culture. Its language is the language of the Bible. Its landscape is saturated by Jewish history. Shabbat is the day of rest. The calendar is Jewish.”
“When it comes to matters of Jewish status we are more liberal than the O[ffice of the] C[hief] R[abbi] and adopt a more inclusivist strategy. This applies particularly in the area of conversion where we are keen to count in as many people who wish to define themselves as Jews as possible … our formal requirements for conversion are almost exactly the same as those of Orthodoxy but we are less exacting and more ‘pluralistic’ in the demands we make in terms of religious observance. … The Movement for Reform Judaism favours a much more liberal and inclusive definition of Jewish status than the OCR but the fundamentals – descent and conversion – are the same.”
“The crucial difference between the Movement for Reform Judaism and the OCR/United Synagogue is that we will accept the documentation of any reputable Jewish authority throughout the world whereas they are much more restrictive.”
“The religious observance and instruction in the School shall be in accordance with the practice, rites and doctrines of the Jewish faith and for these purposes the decision of the Chief Rabbi of the United Hebrew Congregations of the British Commonwealth and Empire shall be final.”
“Statement of School 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 British 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.”
“The outlook and practice of the School is Orthodox. One of our aims is to ensure that Jewish values permeate the School. Our students reflect the very wide range of the religious spectrum of British Jewry. Whilst two thirds or more of our students have attended Jewish primary schools, a significant number of our Year 7 intake has not attended Jewish schools and some enter the School with little or no Jewish education. Many come from families who are totally committed to Judaism and Israel; others are unaware of Jewish belief and practice. We welcome this diversity and embrace the opportunity to have such a broad range of young people developing Jewish values together … ”
“JFS is a Voluntary Aided Comprehensive School for Jewish students whose range of religious affiliation within the Jewish faith is very wide … ”
“The School is committed, in accordance with Jewish principles, to the fair and equal treatment of all individuals. In particular, the School will disregard considerations based upon colour, disability, ethnic or racial origins, gender, marital status, nationality or religion, except as provided for in the School’s authorised Admissions Policy.”
“3.1 JFS strives to ensure that the culture and ethos of the School, are based upon orthodox Judaism as defined by the Office of the Chief Rabbi, are such that, whatever the heritage and origins of members of the school community, everyone is equally valued and treats one another with respect … 3.2 Equal opportunities law does not override a Jewish school’s right to give preference in admissions to Jewish students.”
“This implies that the principles of the Reform and Liberal synagogues are inimical to religion as taught in the School, even though the parents of many pupils are members of the Reform movements. The introduction of the policy can, of course, be traced to the successful efforts made by the United Synagogue and the London Board … to ensure a special place for the Chief Rabbi and the United Synagogue.”
“1.1 It is JFS (“the School”) policy to admit up to the standard admissions number children who are recognised as being Jewish by the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth (OCR) or who have already enrolled upon or who have undertaken, with the consent of their parents, to follow any course of conversion to Judaism under the approval of the OCR. 1.2 In the event that the School is oversubscribed then only children who satisfy the provisions of paragraph 1.1 above will be considered for admission, in accordance with the oversubscription criteria set out in Section 2, below.”
“Controversy arises because conversions by the Reform or Liberal Synagogues do not come within the definition. There is no requirement that the Jewish mother must be a practising Jewess or member of an orthodox synagogue. Anomalies abound. The accepted ‘Jewish’ mother whose child is eligible to go to JFS might now be a member of the Reform synagogue or of no synagogue, be an agnostic or an atheist – that would not debar her child from entrance. An observant mother, who regularly attends synagogue and keeps a kosher home cannot enter her child at JFS if she, the mother, is Jewish by conversion under Reform or Liberal auspices.”
“They were told that we shall have to decide whether, in view of her closeness to Mr L and his family before her conversion and her subsequent marriage to him soon after, knowing that he is a Cohen and the marriage therefore forbidden, she could be said to have accepted the Jewish faith without reservation.”
“Due to the circumstances of Mrs L’s contracting a forbidden marriage soon after her conversion we very much regret that we are unable to recognise the validity of her conversion. Consequently we cannot authorise a Mohel [ritual circumciser] to perform a Brit on your son.”
“it appeared to the LBD that … at the time of conversion, Mrs L intended to marry Mr L, despite knowing that such a marriage was contrary to Jewish law. She therefore did not accept the tenets of the Orthodox Jewish faith at the time of her conversion, and her conversion was accordingly held by the LBD to be invalid. Accordingly, Jewish status did not pass to Mrs L’s children by matrilineal descent. It is important to note that it is not the marriage between Mr and Mrs L that is itself of concern. Although this was a breach of Orthodox Jewish law (in the same way as not keeping the Sabbath, or breaching dietary laws are a breach of Jewish law), it is the fact that at the moment of her conversion she did not accept all the tenets of Orthodox Judaism that invalidates the conversion.”
“Given this information, in relation to the School’s Admissions Policy, your daughter will only be considered for admission in the event that JFS is unable to fill its standard admissions number with children who are recognised as being Jewish by the Office of the Chief Rabbi. If you have any questions regarding your daughter’s Jewish status they should be addressed directly to [the OCR].”
“we have been fighting for justice for our family for many years now and to not be able to pursue justice is almost unbearable. The actions of the Beth Din in not accepting my Jewish status, causes me immense hurt, distress and torment on a daily basis, both to me as a practising Jew of over 20 years and to me as a mother. The only thing worse than my pain is to see the pain of my daughter.”
“It has been particularly difficult for my wife teaching at JFS although she has had a great deal of support from the staff and parents, for which she we are grateful. My daughter … leads an active Jewish life and asks why she can’t go to the school of her choice, where her mother teaches and where I and my sisters were pupils. I find this hard to explain to her, other than saying that there are small-minded people stopping it from happening. I am desperately sorry that we are unable to take our own proceedings but we are a family of average means against a large, well-financed establishment. … I cannot begin to express the pain and suffering that our whole family feels as a consequence of the actions of the London Beth Din. It has now been with us for many years without it diminishing or dimming. My wife has been incredibly brave in going public about this matter and the distress will only be over when our family is accepted as Jewish by the Beth Din and when [our daughter] is given a place at JFS.”
“Mr S is a non religious Israeli. Was an officer in the Israeli army … Mr S concedes that they were not religious but is aggrieved that we question the Israeli conversion.”
“Regrettably, given the details of your conversion with particular regard to the level of commitment and observance to Orthodox Jewish practice at the time of your conversion, the Beth Din is not able to recognise your conversion effected in Israel. I am sorry to disappoint you … However, the issue is one of Halachik Jewish status and we are simply not able to accept the existing conversion. At the same time, I would like to offer that should you wish to undertake tuition with the intention of becoming fully observant, we would be in a position to consider regularising your conversion.”
“The crucial question before the Chief Rabbi and the Beth Din was whether or not they should recognise the validity of your conversion to Judaism which took place in Israel in June 1990. In order to do so, they sought to establish your level of commitment to Orthodox Jewish practice at the time of your conversion as evidenced and demonstrated by your practice before immediately prior to and immediately after the conversion and by reference to all the surrounding circumstances of the conversion. … You were unable to describe any active involvement in Jewish life, on your return to England and within 3½ months of the conversion you married an Israeli who describes himself as a “secular Jew” who did not even attend Synagogue on Yom Kippur, after he had moved with you to a Jewish area. It was also apparent that your knowledge of Jewish religious practice was minimal in the extreme. On the basis of your own account of the conversion process the Chief Rabbi and Beth Din determined there were serious flaws in the conversion, as you were unable to provide us with evidence that, whether at the time of your conversion or subsequently, you maintained even the most basic observance of Jewish law, essential to the validity of a conversion. The Chief Rabbi and the Beth Din have decided, that they have no grounds to overturn the previous finding of the Beth Din, as reflected in [the] letter of13th January 2005 and are unable to recognise your conversion.”
“We decided not to take the matter further … I still feel that it is ridiculous that I and my children are recognised as Jewish by the Orthodox authorities in Israel (who have confirmed that my conversion is valid) but not in England and feel very sad that my sons are not able to have the benefit of a Jewish education.”
“ … any Rabbinic Court whether in Israel or outside Israel has the authority to review the validity of a conversion which has been carried out, on the basis of evidence brought before it at the time that the case is being reviewed. Similarly, there is nothing to prevent any Beth Din within its own jurisdiction evaluating the validity of a conversion which has taken place elsewhere when the conversion is brought into question. The above is consistent with established halachic practice.”
“because the School has not received evidence of [M]’s Jewish status it would not be possible to consider [M] for a place unless and until all those applicants whose Jewish status has been confirmed have been offered places. It follows from this that, as the School is likely to remain heavily oversubscribed, [M]’s position on the offer list will almost certainly be very low and the likelihood of being able to offer a place is very small.”
“as the grounds for your appeal appeared to be based on a challenge to the Admission criteria of JFS … it was outside the remit of this Appeal Panel to deal with this, where the Panel took the view that there was no evident unlawfulness in the criteria in question, and that therefore you must take this issue through other channels.”
“The High Court is not the place to discuss Jewish law.”
“The State’s duty of neutrality and impartiality, as defined in the Court’s case law, is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs.”
“But that is an internal matter for the Jewish community. We would not want the law of the land to question the right of the OCR to define Jewish identity the way that it does. We do not think it is wise or right for the State to get involved. In any event, this has nothing to do with race or racism.”
“What would be absolutely ridiculous and unacceptable would be to require synagogue attendance or a defined level of religious practice … We would be equally outraged” – that is, equally with Orthodox Judaism – “if a ‘Christian’ model of ‘Church’ membership and attendance were imposed. We would advise very strongly against government or legal intervention in the admissions criteria at JFS – even though our view of the needs of the Jewish world and our outlook on the best strategy to maintain and develop Jewish life is very different. In our view, the OCR policy with regard to admission to JFS is strategically wrong, ‘politically’ motivated, not in the interests either of the community or the family concerned and unjust. But we would not want the courts or the government to intervene or adjudicate, certainly not on grounds of racial discrimination.”
“1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2 Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
“The Court refers to its settled case law to the effect that, as enshrined in Art. 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.”
“pluralism is also built on the genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs, artistic, literary and socio-economic ideas and concepts. The harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion.”
“While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to “manifest [one’s] religion” alone and in private or in community with others, in public and within the circle of those whose faith one shares. Since religious communities traditionally exist in the form of organised structures, Art. 9 must be interpreted in the light ofArt. 11 of the Convention , which safeguards associative life against unjustified state interference. Seen in that perspective, the right of believers to freedom of religion, which includes the right to manifest one’s religion in community with others, encompasses the expectation that believers will be allowed to associate freely, without arbitrary state intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Art. 9 affords.”
“Where the organisation of the religious community is at issue, a refusal to recognise it … constitutes interference with the applicants’ right to freedom of religion underart 9 of the Convention . The believers’ right to freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary State intervention.”
“The State’s duty of neutrality and impartiality, as defined in the Court’s case law, is incompatible with any power on the state’s part to assess the legitimacy of religious beliefs.”
“The Court points out that, according to its constant case law, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate.”
“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”
“the expression “philosophical convictions” in the present context denotes, in the Court’s opinion, such convictions as are worthy of respect in a “democratic society” and are not incompatible with human dignity; in addition, they must not conflict with the fundamental right of the child to education, the whole of Article 2 being dominated by its first sentence.”
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
“(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 … (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 a legitimate aim.
“(1) In this Act, unless the context otherwise requires – “racial grounds” means any of the following grounds, namely colour, race, nationality or ethnic or national origins; “racial group” means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person’s racial group refer to any racial group into which he falls. (2) The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group for the purposes of this Act. … (4) A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) or (1A) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”
“(1) It is unlawful, in relation to an educational establishment falling within column 1 of the following table, for a person indicated in relation to the establishment in column 2 (the “responsible body") to discriminate against a person – (a) in the terms on which it offers to admit him to the establishment as a pupil; or (b) by refusing or deliberately omitting to accept an application for his admission to the establishment as a pupil … ”
“It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination.”
“(1) It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services – (a) by refusing or deliberately omitting to provide him with any of them; or (b) by refusing or deliberately omitting to provide him with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in the first-mentioned person’s case in relation to other members of the public or (where the person so seeking belongs to a section of the public) to other members of that section. (2) The following are examples of the facilities and services mentioned in subsection (1) – … (d) facilities for education; … (g) the services of any profession or trade, or any local or other public authority.”
“Nothing in Parts II to IV shall render unlawful any act done in affording persons of a particular racial group access to facilities or services to meet the special needs of persons of that group in regard to their education, training or welfare, or any ancillary benefits.”
“(1) Except as provided by this Act … no proceedings, whether civil or criminal, shall lie against any person in respect of an act by reason that the act is unlawful by virtue of a provision of this Act. (2) Subsection (1) does not preclude the making of an order of certiorari, mandamus or prohibition.”
“(1) A claim by any person (“the claimant”) that another person (“the respondent”) – (a) has committed an act ... against the claimant which is unlawful by virtue of Part III … may be made the subject of civil proceedings in like manner as any other claim in tort … (2) Proceedings under subsection (1) – (a) shall, in England and Wales, be brought only in a designated county court … but all such remedies shall be obtainable in such proceedings as, apart from this subsection and section 53(1), would be obtainable in the High Court … ”
“Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need – (a) to eliminate unlawful racial discrimination; and (b) to promote equality of opportunity and good relations between persons of different racial groups.”
“In this Part— (a) “religion” means any religion, (b) “belief” means any religious or philosophical belief, (c) a reference to religion includes a reference to lack of religion, and (d) a reference to belief includes a reference to lack of belief.”
“(1) A person (“A”) discriminates against another (“B”) for the purposes of this Part if on grounds of the religion or belief of B or of any other person except A (whether or not it is also A's religion or belief) A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances). (2) In subsection (1) a reference to a person’s religion or belief includes a reference to a religion or belief to which he is thought to belong or subscribe.”
“It is unlawful for the responsible body of an educational establishment listed in the Table to discriminate against a person – (a) in the terms on which it offers to admit him as a pupil, (b) by refusing to accept an application to admit him as a pupil … ”
“Section 49(1)(a), (b) and … shall not apply in relation to – (a) a school designated undersection 69(3) of the School Standards and Framework Act 1998 (c. 31) (foundation or voluntary school with religious character) … ”
“In this Convention, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”
“States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: (a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation; (b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations; (c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists; (d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization; …”
“In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: … (e) Economic, social and cultural rights, in particular: … (v) The right to education and training; …” (v) The right to education and training; …”
“My Lords, I recognise that “ethnic” conveys a flavour of race but it cannot, in my opinion, have been used in the Act of 1976 in a strictly racial or biological sense. For one thing, it would be absurd to suppose that Parliament can have intended that membership of a particular racial group should depend upon scientific proof that a person possessed the relevant distinctive biological characteristics (assuming that such characteristics exist).”
“In my opinion, the word “ethnic” still retains a racial flavour but it is used nowadays in an extended sense to include other characteristics which may be commonly thought of as being associated with common racial origin. For a group to constitute an ethnic group in the sense of the Act of 1976, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant; (3) either a common geographical origin, or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups. A group defined by reference to enough of these characteristics would be capable of including converts, for example, persons who marry into the group, and of excluding apostates. Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he is, for the purposes of the Act, a member. That appears to be consistent with the words at the end of section 3(1): “references to a person's racial group refer to any racial group into which he falls.”
“The real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins. That must be based on a belief shared by members of the group.”
“a group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock. It is that combination which gives them an historically determined social identity in their own eyes and in the eyes of those outside the group. They have a distinct social identity based not simply on group cohesion and solidarity but also on their belief as to their historical antecedents.”
“[22] This decision of the Industrial Tribunal is attacked on a number of grounds. Firstly, a question which had to be considered by the Industrial Tribunal was whether they had jurisdiction to deal with this matter at all. The point was quite rightly raised as to whether what had happened here was on the ground of Mr Seide’s religion. If it was, then it appeared to be outside the provisions of the Race Relations Act. On the other hand, if it was on the ground of his race or ethnic origin then it would be within the ambit of the Act. Both sides accept and the Tribunal accepted that ‘Jewish’ could mean that one was a member of a race or a particular ethnic origin as well as being a member of a particular religious faith. The Tribunal, on that basis, found that what happened here was not because Mr Seide was of the Jewish faith but because he was a member of the Jewish race or of Jewish ethnic origin. [23] It seems to us that their approach to this question was the right approach, as agreed by the parties, and that they were perfectly entitled to find on the facts of this case that Mr Garcia’s remarks were on the basis of Mr Seide’s race or ethnic origin.”
“It is the clear purpose of section 71 to require public bodies to whom that provision applies to give advance consideration to issues of race discrimination before making any policy decision that may be affected by them. This is a salutary requirement, and this provision must be seen as an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. It is not possible to take the view that the Secretary of State’s non-compliance with that provision was not a very important matter. In the context of the wider objectives of anti-discrimination legislation, section 71 has a significant role to play.”
“I do not accept that the failure of an inspector to make explicit reference to section 71(1) is determinative of the question whether he has performed his duty under the statute. So to hold would be to sacrifice substance to form.”
“The question in every case is whether the decision-maker has in substance had due regard to the relevant statutory need. Just as the use of a mantra referring to the statutory provision does not of itself show that the duty has been performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed … To see whether the duty has been performed, it is necessary to turn to the substance of the decision and its reasoning.”
“The governing body of a maintained school shall, in discharging their functions, comply with – (a) the instrument of government.”
“The principle does not amount to a rule that knows no exception; it is a rule of construction which makes the presumption that “a discretion conferred by statute is prima facie intended to be exercised by the authority on which the statute has conferred it and by no other authority, but this presumption may be rebutted by any contrary indications found in the language, scope or object of the statute”
“In drawing up their admission arrangements, admission authorities must ensure that the practices and the criteria used to decide the allocation of school places: a) are clear in the sense of being free from doubt and easily understood. Arrangements that are vague only lead to uncertainty and this may reduce the ability of parents to make an informed choice for their children. They are also likely to increase the chances of an objection; b) are objective and based on known facts. Admission authorities and governing bodies must not make subjective decisions or use subjective criteria; c) are procedurally fair and are also equitable for all groups of children (including those with special educational needs, disabilities, those in public care, or who may be a young carer); d) enable parents’ preferences for the schools of their choice to be met to the maximum extent possible; e) provide parents or carers with easy access to helpful admissions information … ; f) comply with all relevant legislation, including on infant class sizes and on equal opportunities, and have been determined in accordance with the statutory requirements and the mandatory provisions of this Code.”
“Admission authorities and governing bodies must ensure that their admission arrangements and other school policies are fair and do not disadvantage, either directly or indirectly, a child from a particular social or racial group, or a child with a disability or special educational needs.”
“Admission authorities must not use supplementary application or information forms that ask: a) for any personal details about parents, … ”
“Admission authorities must not discriminate against children whose parents fall into certain social groups. No personal information about parents is relevant in considering an application for a place at a school and criteria which focus on parents cannot legitimately be included as oversubscription criteria.”
“At faith schools, the prohibition in paragraph 1.71 does not prevent the use of a supplementary form that asks parents or children about their membership of or relationship with the church or religious denomination in accordance with paragraphs 2.41 to 2.53 of this Code.”
“In setting oversubscription criteria the admission authorities for all maintained schools must not: … e) give priority to children according to the … background of their parents; … ”
“It is unlawful undersection 49 of the Equality Act 2006 for maintained, nonmaintained or independent schools to discriminate against a child on the grounds of the child’s religion or belief in the terms on which it offers to admit him as a pupil or by refusing to accept an application for a place at the school. However, those schools designated by the Secretary of State as having a religious character (faith schools) are exempt and are permitted to use faith-based oversubscription criteria in order to give higher priority in admissions to children who are members of, or who practise, their faith or denomination. This only applies if a school is oversubscribed.”
“Faith-based oversubscription criteria must be framed so as not to conflict with other legislation, such as equalities and race relations legislation …”
“As with all oversubscription criteria, those that are faith-based must be clear, objective and fair. Parents must easily be able to understand how the criteria will be satisfied. It is primarily for the relevant faith provider group or religious authority to decide how membership or practice is to be demonstrated, and, accordingly, in determining faith-based oversubscription criteria, admission authorities for faith schools should only use the methods and definitions agreed by their faith provider group or religious authority … ”
“Published admission arrangements must make clear how membership or practice is to be demonstrated in line with guidance issued by the faith provider group or religious authority. Whatever method is used it must be clearly objective and transparent … ”
“Religious authorities may provide guidance for the admission authorities of schools of their faith that sets out what objective processes and criteria may be used to establish whether a child is a member of, or whether they practise, the faith. The admission authorities of faith schools that propose to give priority on the basis of membership or practice of their faith should have regard to such guidance, to the extent that the guidance is consistent with the mandatory provisions and guidelines of this Code.”
“Admission authorities for faith schools should consider how their particular admission arrangements impact on the communities in which they are physically based and those faith communities which they serve.”
“The appeal committee’s duty is, of course, to determine the merits of individual appeals. The idea that it can do so without some reference to the lawfulness of the arrangements made by the LEA … is, however, unrealistic. An appeal committee is not obliged to treat those arrangements as if set in stone and beyond challenge. They may lack clarity or, as in this case, be unlawful. Mr McManus accepted, in the course of argument, that the appeal committee should not be obliged to enforce arrangements which were contrary to basic human rights or were racially or sexually discriminatory. Whether they do so offend, involves a legal judgment by the appeal committee … but I cannot agree that, as a matter of jurisdiction, the appeal committee is disentitled from considering legal issues.”
“An appeal committee is not obliged slavishly to apply unlawful LEA arrangements… The difficulty of defining the jurisdiction of an appeal committee which is intended to reassure parents by virtue of its independence is plain. There is no simple answer to the conflict which may follow from a wish to create, on the one hand, a quasi-judicial procedure which aggrieved parents may use and, on the other hand, a procedure which does not interfere unduly with the needs of good administration … Good sense can be expected of committees in their approach to LEA arrangements. A committee is not obliged to ignore illegality if the merits of a particular case require adherence to legality.”
“I do not see how one can properly distinguish between some illegalities and other illegalities. If it is permissible for the appeal committee to consider some questions of law, I cannot think that there can be any objection in principle to the committee considering other questions of law relevant to the appeal. Having said that, I fully recognise the practical difficulties to which Laws LJ rightly draws attention in his judgment. The primary function of the appeal committee is to determine the merits of the particular appeal. The appeal committee plainly has no power to quash the council’s policy decision, but if the point had been taken (which it was not) on the appeals in respect of the appellants that the admissions procedure was unlawful … , I take the view that the appeal committee could not shut its eyes to that fact; nor could a fresh appeal committee do so. In each case it would have had to consider the effect of that illegality on the appeal before it.”
“In order for a panel to determine that an admission authority’s decision to refuse admission was unreasonable, it will need to be satisfied that the decision to refuse to admit the particular child was “perverse in the light of the admission arrangements”, i.e. it was “beyond the range of responses open to a reasonable decision maker” or “a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it”
“The Nuremberg Laws provide a disturbing and important illustration of the point that no proper distinction can or should be drawn between the three concepts identified by the Secretary of State” – that is, discrimination on the grounds of Jewish ethnic origins, discrimination on the grounds of Jewish status and discrimination on the grounds of Jewish descent – “Discrimination against a person (or in their favour) on grounds of their Jewish status, Jewish ethnic origins or Jewish descent constitutes direct race discrimination: the three concepts are closely intertwined and overlapping, and are not capable of being distinguished on any principled basis which accords with the normal use of language, or with public policy.”
“(1) A Jew is an individual who is descended from at least three grandparents who were, racially, full Jews … (2) A Jew is also an individual who is descended from two full-Jewish grandparents if: (a) he was a member of the Jewish religious community when this law was issued, or joined the community later; (b) when the law was issued, he was married to a person who was a Jew, or was subsequently married to a Jew; (c) he is the issue from a marriage with a Jew, in the sense of Section 1, which was contracted after the coming into effect of the Law for the Protection of German Blood and Honour of September 15, 1935; (d) he is the issue of an extramarital relationship with a Jew, in the sense of Section 1, and was born out of wedlock after July 31, 1936.”
“An individual of mixed Jewish blood is one who is descended from one or two grandparents who, racially, were full Jews, insofar that he is not a Jew according to Section 2 of Article 5. Full-blooded Jewish grandparents are those who belonged to the Jewish religious community.”
“The first attempt to give a precise definition of the “chief enemy” of the Third Reich” – this is a reference to the First Supplementary Decree – “revealed the totally pseudoscientific nature of its racist doctrines and the charlatanism of the “scientists” associated with them. The definition also exposed the hollowness of the constantly reiterated claim that race as such was “not a political, but rather a biological concept.””
“Thus, racial categorisation depended in such cases on the religion one practiced or on one’s spouse; but the situation became even more confused if the “crossbreed” also happened to be a foreigner … In such instances, race was determined not by religion but by nationality. In general, the whole question of racial categorization was beset with insoluble contradictions …Commentaries on the race laws appealed to readers to remember that there should be “no confusion of the concepts of race and religion! Only the race of the grandparents is decisive!”