to All My
Lord Brown agrees at para para. 255 quoted Munby J in the High Court case of E v JFS (Jewish Free School)  EWHC 1535/1536 (Admin)
Adopting some alternative admissions policy based on such factors as adherence or commitment to Judaism (even assuming that such a concept has any meaning for this purpose in Jewish religious law) would not be a means of achieving JFS’s aims and objectives; on the contrary it would produce a different school ethos. If JFS’s existing aims and objectives are legitimate, as they are, then a policy of giving preference to children who are Jewish applying Orthodox Jewish principles is, they say, necessary and proportionate – indeed, as it seems to me, essential – to achieve those aims . . . JFS exists as a school for Orthodox Jews. If it is to remain a school for Orthodox Jews it must retain its existing admissions policy; if it does not, it will cease to be a school for Orthodox Jews. Precisely. To this argument there is, and can be, no satisfactory answer.As we Lawyers put it "I respectfully agree" because he recognised that the decision of the Court produced an absurdity and the Law should not do that certainly not the law as propounded by a Supreme Court
There has been a lot of Internet discussion about this case and a common theme has been criticism of JFS policy because JFS, like other Faith Schools is publicly funded.
Can I just make one point crystal clear
From a Legal point of view the fact that the school is publicly funded was totally irrelevant to the decision because private Schools are covered by the Race Relations Act just as much as state schools. If the JFS was an entirely 100% private school funded entirely by the Orthodox Jewish Community the decision in the case would have been the same.
There is a valid argument over whether there should be state funded religious schools but this is not the case over which that argument should be had.
The issue in this case is whether the Courts of Britain should have the power to decide that a particular person is Jewish when the Chief Rabbi says they are not.
This seems to me to be an extraordinarily wide decision which could be used, for example, to prevent State Schools putting on Nativity Plays or even preventing Muslim Teachers wearing Hijabs in Schools, in the case of Dahlab v Switzerland in 2001 the ECHR defined the Hijab as a "religious symbol" so there are a lot of implications in saying that Religious Symbols cannot be displayed in schools. What is most surprising is that the ECHR did not apply its own concept of "Margin of Appreciation" and recognise that this type of issue should be left to individual countries to decide. In effect the ECHR has extended to the whole of Europe the French concept of strict separation between religion and state schools which ignores the different Educational traditions and systems in the separate nations of Europe.
As several press articles on the case have pointed out the Court did not expressly order the School to remove its Crucifix but this is because the Court does not have the power to make such orders what it does do is find a violation of the Convention and then the Italian Government has to report back to the Council of Europe exactly what it proposes to do in order to impliment the ruling which in this case will mean removing crucifixes from the classrooms, courts public buildings etc. In the UK because of s2 of the Human Rights Act the ruling has effect as a binding precedent in UK law and I suspect we will shortly be hearing about public displays of Christmas Decorations being removed, School Nativity Plays being banned etc by local authorities who will say they are acting in accordance with this Court ruling.
Within this country too, there are many areas in which the Church and the public authorities can work together for the good of citizens, in harmony with Britain’s long-standing tradition. For such cooperation to be possible, religious bodies – including institutions linked to the Catholic Church – need to be free to act in accordance with their own principles and specific convictions based upon the faith and the official teaching of the Church. In this way, such basic rights as religious freedom, freedom of conscience and freedom of association are guaranteed.
( See this Blog 7 February 2010)