When the Court of Appeal gave judgment in R (on the application of E) v The Governing Body of JFS, it was suggested to me that this might be a good topic for the blog. I did not take the opportunity to write about it then because it seemed to me that, like the vast majority of judicial decisions, it was entirely sound and consistent with authority and, being the contrarian that I am, this was uninteresting to me. I could not dispute the reasoning that to favour a boy of Progressive Jewish faith who is of Jewish blood over a boy of Progressive Jewish faith who is not of Jewish blood must necessarily be an example of direct discrimination on the grounds of ethnicity. As was established by James v Eastleigh Borough Council, a potentially benign motive for the discrimination will not prevent a claim from being made out.

However, I have learned that the case is being heard at the Supreme Court this week, exceptionally by a panel of nine judges, a measure of the high public importance which has been attached to it, as is the large number of interveners, many of whom have been involved since the case began in the High Court. Unfortunately, cases raising important issues of policy do not always encourage the consistent application of law and I am now worrying about an interventionist judgment with negative side effects.

It is worth examining the legislative history behind the key issues that arise. There has never been a justification defence for direct race discrimination but employment law has the concept of a Genuine Occupational Requirement, which allows practices that would otherwise be discriminatory if there is a strong enough reason for them. Rather curiously, when Parliament extended discrimination protection to other areas of life, it chose not to introduce a similar defence. In fact, the idea of a Genuine Service Requirement was discussed during the consultation for the Equality Bill but was subsequently rejected.

As a consequence, there are striking and alarming parallels with the infamous situation in Lewisham v Malcolm. Just like Malcolm, this is another case in which discrimination law is being used outside of the employment sphere, in circumstances in which employment law provides a sensible and proportionate defence but the other field in question does not. As in Malcolm, the temptation for the Justices will be to narrow the concept of direct discrimination in order to achieve a desired result, but in a way that will have knock-on effects for employment law, where the policy concerns in this case simply do not arise.

They should resist that temptation. If they feel strongly that a Genuine Service Requirement defence should have been introduced, they are entitled to say so in their judgments. Indeed, the Equality Bill is still passing through Parliament and it is not inconceivable that it will be changed as a result. Ultimately, however, introducing such a defence is a matter for our elected representatives. The Justices must not undermine the decision of James v Eastleigh Borough Council to resolve a narrow issue in a hard case.

I have one final thought. The central argument of the school is that its admission policy should be lawful because it is following the requirements of Jewish law. The implication is that English law should bend in order to accomodate it. Imagine the outrage if a similar argument were to be used about Sharia law.