In December 2009 the Supreme Court by the narrowest of margins (5 to 4) found against the Governing Body of JFS (formerly called the Jews' Free School) on the basis of direct race discrimination.Footnote 1 Consequently, schools run by Jews, Sikhs and any other faiths that happen also to be an ‘ethnic group’ are barred from giving priority to children who are members of that faith. As is well known, the very broad definition of ‘ethnic group’ was set by the House of Lords in Mandla v Dowell-Lee Footnote 2 at a time when the protections afforded by the more recent laws against religious discrimination were lacking. The majority in the Supreme Court evidently, and with some justification, considered that this definition was sufficiently settled law that only a legislative, and not a judicial, intervention could alter it. In contrast, those faiths and denominations that avoid falling into the Mandla trap, may continue to give priority to their members in admission to their schools. A number of commentators have confidently predicted that this case does not therefore affect most other schools with a religious character. Such a conclusion may be somewhat hasty. The minority held that this was a case of indirect, rather than direct, discrimination and, as such, potentially subject to justification. Perhaps the most surprising element of the judgment is that, unlike Mumby J at first instance, a majority of the Justices did not find it self-evident that a Jewish school giving priority to Jewish applicants in its admissions policy was a proportionate means of pursuing a legitimate aim.
Two of the dissenting Justices (Lords Brown and Rodger) did so find: Lord Rodger could not see how a court could hold that the school's policy was disproportionate. Notwithstanding that, the three majority judgments that considered the point (Lord Mance, with whom Lords Kerr and Clarke agreed) and the two other dissenting Justices (Lord Hope, with whom Lord Walker agreed) did not accept that there was sufficient evidence before the court to justify that the means used by the school were proportionate, particularly given the lack of any evidence that the governing body had given serious thought to whether less discriminatory means could be adopted to pursue the aim.
At one level there appear to be indications that this is partly a simple process issue: the question must have been considered by the governing body in order to demonstrate that the justification is demonstrated. But even this conclusion gives rise to a number of practical difficulties. Giving preference on the basis of religion will almost always give rise to the possibility of indirect discrimination. How often must the thousands of schools that do so formally examine the question? When such a criterion is established, or changed, or annually? What is the role of the school's trustees, or its religious authority, particularly in schools (such as Roman Catholic schools generally) where there is a legal duty to give such preference stemming from their trust deed? The prospect of the governing bodies of all such schools formally considering whether such preference is a proportionate means of pursuing a legitimate aim and minuting the exercise could create much work for lawyers.
The JFS case stemmed from the practice of the school to ‘out-source’ an essentially religious question to the appropriate religious authority (here the Office of the Chief Rabbi) recognised by Parliament as such in relation to the school. It inevitably brings up the question of the ‘well-recognised divide between church and state’ (as Lord Hope put it) in the interesting context of state maintained schools with a religious character. All the Justices in the Supreme Court seemed clear that such interference would only be justified in exceptional cases such as the one before them. This same dividing line has been put under some detailed scrutiny recently in two determinations made by the Schools Adjudicator.Footnote 3
Adjudicator decisions, like canonical judgments, bind only the persons and matters for which they were given (Schools Standards and Framework Act 1998, s.88K(2); canon 16, §3). But like canonical judgments, this does not prevent jurists and others attempting to distil from those judgments the legal principles being applied, so as to apply them in a wider context.
The Cardinal Vaughan determination was published at the end of December 2009 and resulted from a reference by the Diocese of Westminster as the religious authority for the school (the first such reference since religious authorities were given this power in 2008). The Diocese is also the Trustee of the School. The Diocese objected to a number of aspects of the oversubscription criteria being used by the school, which, like most Roman Catholic secondary schools in London, is heavily oversubscribed, leading to stiff competition for places. The central theme of the Diocese's objections was that the school's governing body had developed their own tests for measuring what the school considered to be ‘practising Catholics’. The School's tests for ‘Catholicity’ of potential pupils and their parents went far further than the Diocesan Bishop's Guidance permitted or was generally required of Catholics by canon law. The most obvious manifestation of this policy was a complex system of awarding points for involvement in parish activities. The Diocese presented evidence that this was likely to disadvantage certain social, ethnic and linguistic groups within the diverse Roman Catholic population in London.
Examining these claims led the Adjudicator to consider very carefully the role of the various parties and, in particular the relationship between the religious authority and the governing body of the school in relation to these, essentially religious, matters.
Both the Education Acts and the Schools Admissions Code now recognise the role of the ‘religious authority’ in relation to schools with a religious character. This recognition originated in 1993 with the formal recognition of the ‘appropriate diocesan authority’ (Diocesan Board of Education for Church of England schools, Diocesan Bishop for Catholic schools) for certain purposes. In the 2009 School Admissions Code (admission authorities are now obliged to ‘act in accordance with’ the Code) the ‘religious authority’ was identified as having a primary role in any definition of membership or practice of their faith:
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 the faith provider group or religious authority (see paragraph 2.52)'.Footnote 4
… The admission authorities of faith schools that propose to give priority on the basis of membership or practice of their faith must have regard to [guidance from the religious authority], to the extent that the guidance is consistent with the mandatory provisions and guidelines of this Code. In applying faith criteria, faith schools must ask their religious authority … to confirm whether someone is a member of, or practises, the faith, in order to apply faith-based oversubscription criteria'.Footnote 5
For the purposes of admissions law the ‘religious authority’ is defined as the appropriate diocesan authority or, in relation to other denominations or faiths, the person or body representing the religion or religious denomination as identified in Regulations.Footnote 6
The Adjudicator, Alan Parker, examined the relationship between the law, Code, and Diocesan Guidance. He said:
I must give considerable weight to the primary role of the diocese in matters of membership of the Catholic Church and practice of that faith; and that includes the ‘methods and definitions’ that are applied to ‘faith-based oversubscription criteria’ (paragraph 2.48). This means that where there is a difference of view between the school and the diocese on such ‘religious matters’ I would need to see a strong justification from the school to support a decision on their part not to accept the diocese's advice. One such argument might be that a religious authority was attempting to enforce an approach to admissions that was inconsistent with the Code; there may be others but they would need to be very persuasive.Footnote 7
He was ‘not persuaded that the school's arguments reached the necessary threshold of justification’ and, in the light of the evidence, upheld the relevant objections accordingly.
Another aspect of this demarcation exercise related to the jurisdiction of the adjudicator over a diocesan (rather than school based) procedure for obtaining a reference from a priest that an applicant is from a practising Catholic family as defined by the Church. This was more sharply in focus in the Newham case, decided by the same Adjudicator, which was published on 4th January 2010.
The Newham Case was a reference by the London Borough of Newham against all of the Roman Catholic schools in the Borough on the basis that certain aspects of the diocesan priest's reference were not, it was alleged, compliant with the Admissions Code. The Dioceses of Brentwood, Westminster and Southwark acted jointly on behalf of the respondent schools, with their consent, as it was the three Diocese's Joint Guidance which lays down the process which the schools are encouraged to use by that same Guidance.
The exact outcome of the case is somewhat confusing and at times contradictory. In the main the Adjudicator appears to have drawn the line in the right place: ‘I have accepted I do not have jurisdiction to require the diocese to change its forms to bring them into line with the Code, but schools cannot participate in a non-compliant process’.Footnote 8 Similarly he recognises that future changes in the diocesan priest's reference are, ‘of course, entirely a matter for the Church’.Footnote 9 The determination points out that some of the schools have not adopted the diocesan form, but one of their own, by amending a version of it and incorporating that within their own application forms, thus clearly bringing them within the scope of the Code and his jurisdiction.Footnote 10 Indeed, he recommends this course of action.Footnote 11 Such would, of course, bring the whole matter certainly within his jurisdiction and conceivably thereby curtail the proper freedom of the Church to determine its own matters of membership and status within its own body. The JFS ruling has shown that the courts will interfere when there is a question of illegality, but otherwise will be very reluctant to trespass in this sphere. The Adjudicator here is more ambiguous. He accepts that the Church is entitled to act, in judging matters of faith and practice, in a way which a governing body of a school under the Code regime may not, and seems to approve of the Church's rationale in doing so.Footnote 12 Yet in other parts of the decision he seems to be of the mind that his jurisdiction could (and possible should) extend to the Church's internal processes: ‘I am driven to the conclusion that the process by which an applicant is judged to be a ‘practising member’, by whomsoever it is carried out, cannot altogether avoid the Code's requirements …'.Footnote 13
This seems to set a scenario where the diocese's process must be partially, but not totally, compliant with the Code, in accordance with the discretion of the particular Adjudicator. That cannot be right. Governing bodies of maintained schools are bound by the Code and by decisions of the Adjudicator, because Parliament has expressly so provided. Dioceses are not. Either the diocesan process for ascertaining membership or practice of the faith is within the Adjudicator's jurisdiction entirely in virtue of being ascribed to each individual governing body, or it ‘belongs’ to the diocese and therefore falls within that category where the State will not interfere unless there is some manifest illegality. If the former is the case, the State has effectively nationalised this aspect of the Church's decision making process. Since all the Justices in the JFS case were clear that the secular courts will be slow to enter into questions concerning the autonomy and self-regulation of religions, surely the latter is the only proper conclusion.
