The judgment of the Supreme Court in this case has been all over the newspapers. I went to see it being handed down yesterday and I was pleased both that the carpet looks much better in real life than in photographs and with the decision itself, in which thirty years of direct discrimination law narrowly avoided being overturned, by a wafer-thin majority of 5 to 4. As noted in this post, it was the authority of James v Eastleigh Borough Council that was at stake and, although at least one of them purported to follow it, the Justices in the minority effectively suggested that the principle had been watered down by Nagarajan. The position of the majority is the orthodox one (in a non-religious sense) and is supported by recent decisions of the Employment Appeal Tribunal, including this one. None of them were actually cited in the speeches, which is surprising because I cannot believe they were not cited in submissions.

A less settled area of law, which gave rise to some ingenious arguments by Lord Pannick, on behalf of the school, concerns the case of Mandla v Lee, which provides the legal definition of an ethnic group. The Court of Appeal had suggested that an ethnic group had to be defined on biological grounds alone and, therefore, a convert to Sikhism (or Judaism) could not claim race discrimination. The House of Lords overturned this decision, stating that there can be a cultural element to an ethnic group. The test is uncontroversially an objective one and, as Lord Pannick pointed out, the effect is that M, the boy in the case, is Jewish like his comparator, who would have been given a place. As Orthodox Jews were not found to constitute a separate ethnic group, it was suggested that there was no race discrimination.

This approach initially appears to be compelling and is not an easy one to rebut but the Justices found a number of problems with it. The first issue is identified by Lord Kerr and Baroness Hale and concerns the fact that, although M and his mother are both Jewish, according to the Mandla test, they are not exclusively Jewish and are also part Italian. The reason for the less favourable treatment was the part that is not Jewish. This is persuasive because, otherwise, people of mixed race would not be protected.

However, it is Lord Mance, in the most detailed judgment, who really gets to grips with the issue. He points out that the intention of Mandla was to widen the definition of an ethnic group, rather than to narrow it, which means that biology is still part of the test, as well as culture. Although the boy and his comparator are members of the same ethnic group culturally, they are members of different groups defined in biological terms. Furthermore, following the case of English v Thomas Sanderson, people can be discriminated against on the grounds of their perceived membership of an ethnic group, even if the perception is objectively incorrect. The school cannot rely on Mandla to say that M is Jewish so there is no discrimination if the reason for treating him less favourably is that they do not accept him as Jewish.