A Jewish school which, in the event of the school being oversubscribed, gave priority to children who were recognised as Jews according to the tenets of Orthodox Judaism, ie the children of mothers who were Jews by either birth or conversion, was operating a policy which discriminated on the grounds of ethnic origin and, therefore, constituted racial discrimination under s 1(1)(a) of the Race Relations Act 1976.

The Supreme Court so held in dismissing an appeal (Lord Hope DPSC and Lord Walker JSC dissenting on that issue; Lord Rodger and Lord Brown JJSC dissenting on that issue and as to the result) by the defendants, the Governing Body of JFS and the Admissions Appeal Panel of JFS from a decision of the Court of Appeal (Sedley, Smith and Rimer LJJ) [2009] PTSR 1442 allowing an appeal by the claimant, E, from a decision of Munby J [2008] ELR 445 dismissing the claimant?s claim for judicial review of the defendants? admissions policy.

LORD PHILLIPS PSC said that there might well be a defect in our law of discrimination. In contrast to the law in many countries, where English law forbade direct discrimination it provided no defence of justification. The difference between the motive for discrimination and the factual criteria applied by the discriminator as the test for discrimination lay at the heart of the division between the majority and the minority of the House of Lords in James v Eastleigh Borough Council [1990] 2 AC 751. The contrast between the reasoning of the majority and of the minority was clear. The majority in the Supreme Court found the reasoning of the majority in the House of Lords compelling. Whether there had been discrimination on the ground of sex or race depended upon whether sex or race was the criterion applied as the basis for discrimination. The motive for discriminating according to that criterion was not relevant. It was possible to identify two different cohorts, one identified by the criteria laid down by Lord Fraser of Tullybelton in Mandla (Sewa Singh) v Dowell Lee [1983] 2 AC 548 and one by the Orthodox criteria. The cohort identified by the Mandla criteria formed the Jewish ethnic group. They shared the essentials: a long shared history, of which the group was conscious as distinguishing it from other groups and the memory of which it kept alive and a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. The Mandla group would include many who were in the cohort identified by the Orthodox criteria, for many of them would satisfy the matrilineal test. But there would be some who did not. So far as the cohort identified by the Orthodox test was concerned, many of those would also fell within the Mandla group. But there would be some, indeed many, who did not. Most of those would be descendants from Jewish women who had married out of and abandoned the Jewish faith. They might be unaware of the genetic link that rendered them Jewish according to the Orthodox test. Thus, in JFS?s submissions the Orthodox test was not one that necessarily identified members of the Jewish ethnic group. It was a test founded on religious dogma and discrimination on the basis of that test was not racial discrimination. That argument was fallacious. The fallacy lay in treating current membership of a Mandla ethnic group as the exclusive ground of racial discrimination. It ignored the fact that the definition of ?racial grounds? in s 3 of the 1976 Act included ?ethnic or national origins?. Origins required one to focus on descent. Descent simpliciter was not a ground of racial discrimination. It would only be so if the descent in question was one which traced racial or ethnic origin. It was clear that the matrilineal test was a test of ethnic origin. By definition, discrimination that was based upon that test was discrimination on racial grounds under the Act.

BARONESS HALE, LORD MANCE, LORD KERR and LORD CLARKE JJSC delivered concurring opinions.

LORD HOPE DPSC, LORD RODGER, LORD WALKER and LORD BROWN JJSC delivered dissenting opinions.