E v The Governing Body of JFS & Anor

Mr Justice Munby :

1. On 3 July 2008 I handed down my reserved judgment in these two applications for judicial review: R (E) v The Governing Body of JFS and ors [2008] EWHC 1535/1536 (Admin) . I described the litigation as raising important questions as to the relationship between religious law and secular law – in this particular instance, secular discrimination law as embodied in the Race Relations Act 1976 . I went on to comment that the issues and the outcome were of great importance not merely for all the various sections of our Jewish community but also for people of all religions because of the potential impact upon ‘faith schools’ of all faiths and denominations.

2. It will be recalled that the various claims in the two applications fell under the following headings: i) Objections to JFS’s admissions policy: a) direct race discrimination; b) indirect race discrimination; c) breach of section 71 of the 1976 Act ; d) failure to reflect JFS’s designated religious character; e) sub-delegation to the OCR / fettering of discretion; f) breach of the School Admissions Code; g) admission criteria unclear and unfair in relation to conversion. ii) Objections to the JFS’s Appeal Panel’s conduct: a) misdirection as to jurisdiction; b) procedural unfairness.

3. With the sole exception of the claim under (i)(c), where I found for the claimant and granted him declaratory relief against JFS, I dismissed all the claims.

4. The claimant now seeks permission to appeal in relation to claims (i)(a), (i)(b), (i)(d), (i)(g), (ii)(a) and (ii)(b), that is, in relation to all the grounds on which he failed with the sole exceptions of (i)(e) and (i)(f). There is no application by JFS for permission to appeal in relation to claim (i)(c).

5. The application for permission is resisted by JFS and by the Appeal Panel. The Schools Adjudicator and the Secretary of State have both indicated that they do not wish to make any submissions in relation to the issue of permission. I have received no submissions on the point from either the United Synagogue or the BHA.

6. Ms Rose and Ms Mountfield have set out in a written submission dated 9 July 2008 the reasons why, they say, I should grant the permission they seek. Mr Oldham has set out both general reasons why, in his submission, permission should not be granted and, in a further submission, an additional specific reason why permission should not be granted in relation to claim (ii)(a) (see below).

7. I do not propose to analyse these competing submission in any detail. It suffices to say that, in principle, I am persuaded that the claimant should have permission to appeal. This is because on the major issues – that is, in relation to claims (i)(a), (i)(b) and (i)(d) – I am persuaded (1) that there are, as Ms Rose puts it, respectable and serious arguments that I was wrong, in other words that there is, within the meaning of CPR 52.3(6)(a), a “a real prospect of success”, and (2) that there is, within the meaning of CPR 52.3(6)(b), “some other compelling reason why the appeal should be heard”, namely the general importance of the issues involved and the desirability that, whether I was right or wrong, there should be a definitive ruling on them by the Court of Appeal.

8. It will be noticed that I have – quite deliberately – referred in what I have just said only to claims (i)(a), (i)(b) and (i)(d). In relation to claims (i)(g), (ii)(a) and (ii)(b) I am much more sceptical as to whether the claimant can establish a real prospect of success on points which, moreover, do not seem to me to be of anything like the same general importance as the others and in relation to which I would certainly not be prepared to give permission in accordance CPR 52.3(6)(b). Furthermore there is, in relation to claim (ii)(a) the point, highlighted by Mr Oldham in his final submissions, that because of the recent change in the School Admission Appeals Code (see paragraph [261] of my judgment) the point in issue here will not arise in future.

9. I have therefore considered whether, in accordance with CPR 52.3(7)(a), I should limit the issues to be heard by granting permission only on grounds (i)(a), (i)(b) and (i)(d). With, I have to confess, some lack of enthusiasm I have concluded that it is not appropriate to limit the appeal in this way. I would however invite the claimant and his advisers to consider whether, not least given what seems to me to be the lack of any wider importance in relation to claims (i)(g), (ii)(a) and (ii)(b), any useful purpose is likely to be achieved either for the claimant or for his son by the pursuit of these particular grounds of appeal.

10. I will accordingly grant the claimant permission to appeal in relation to claims (i)(a), (i)(b), (i)(d), (i)(g), (ii)(a) and (ii)(b). I invite counsel to draft and agree orders (one in each application) to give effect to this ruling.