There was standing room only when the Supreme Court began hearing the JFS case shortly after 10.30 this morning. And it was not just the public who crowded into Court 1.
The nine justices — the highest number to sit since the court opened at the beginning of this month — faced six QCs and seven junior counsel.
Lord Pannick QC, who opened the appeal on behalf of the north London Jewish school, was allowed to proceed for a full 15 minutes before the being interrupted by questions from the court — although he fell prey to the infuriating design fault in the public address system which means that microphones are constantly being switched off when they should remain on.
Against that, the court deserves praise for allowing its proceedings to be reported from within the courtroom itself. Reporters do not need to leave court to file their stories.
Lord Pannick argued that the Court of Appeal had “erred in law” in finding that it was direct discrimination on racial grounds for JFS to adopt over-subscription criteria which give priority to children who are recognised by the Chief Rabbi as Jewish according to Orthodox Jewish religious principles
He also said the Court of Appeal had been wrong to find that the school’s oversubscription criteria indirectly discriminate contrary to the Race Relations Act 1976.
Lord Pannick’s written submissions — the so-called “Printed Case” — note (in paragraph 35) that the boy at the heart of this case joined the school last month “and JFS has recognised that he would not be removed from the school if this appeal were to succeed”.
The boy is known only by the initial M and there are restrictions on identifying him. But counsel on both sides accepted that this information was now in the public domain, even though the court had re-written an earlier judgment to omit it.
M was not in court this morning although his father was present. Lord Pannick read extracts from a witness statement by M in which the boy said that, for as long as he could remember, his Jewish faith had been part of what he was. He attended te New London Synagogue, a non-Orthodox Masorti congregation in St John’s Wood, almost every Sabbath.
At his previous non-Jewish school, he had always been thhe odd one out. The boy said he had been “taunted” when he wore a kippah (head-covering).
This prompted Lord Clarke to ask whether the boy was a member of “a” Jewish faith. Lord Pannick replied that M regarded himself as Jewish and would be regarded as such by many people — but not the Chief Rabbi.
But Lord Pannick said it was vital to his case that there was a difference between whether a person was Jewish according to orthodox Jewish principles and Jewish by ethnic origin.
The hearing developed into a superb example of oral advocacy at its finest. Lord Pannick fielded questions on English and Jewish law from all nine justices — three of them of Jewish ethnic origins – with aplomb.