From Progress Online
So the fighting is now over and all sides are agreed: the Charity Tribunal investigation into the status of public schools will clear the air for once and for all. The question at issue is: can a fee-charging institution, by definition, provide a public benefit?
For two weeks the arguments have been made and the Charity Commission, the Independent Schools Council and the Attorney General have put their cases. The assumption in recent years is that the charitable status (i.e. tax advantages) of independent schools should relate to how the public, not just the rich, can access their services. The extension of bursaries and the sharing of often superior sports and drama facilities with state schools has been assumed to be sufficient for ‘public benefit’ to be demonstrated.
And of course the independent schools, being generous and caring people, don’t mind in the least opening their doors to the odd bright kid from a council estate, or letting cricketers and aspiring actors get a taste of what they’ve been missing; they just don’t like being told that they have to.
This confusion is all our fault and I am as guilty as others in that respect.
In the 2006 Charities Act – where Ed Miliband led in his first ministerial role and I was a backbench committee member – Labour ducked the issue. Essentially, we said, ‘public benefit’ should be defined on a case by case basis by an under-resourced Charity Commission.
The logic of ducking it was sound at the time: first, avoid a backbench revolt on a measure which could have ended the state subsidy of private education. We did that all right – a few voices in the Lords were raised but the Commons was pretty supine. There were good reasons for not making a fuss.
The Act was not about public schools, it was about public benefit. Its provisions relate equally to any charity that charges fees for its services and a blanket ban on fee-charging would have been impossible. Could Leonard Cheshire Disability or Scope survive without charging fees? When PDSA charges you cost price for neutering your tomcat, is that a fee? I’ll pass on that one.
The second reason is that ever since the sixteenth century Poor Laws the law has declined to define ‘charity’ too closely, let alone ‘public benefit’. In 1945 a judge actually said ‘I certainly do not propose to be the first to make the attempt to define it [the word ‘public’]’. The ‘advancement of education’ officially became a charitable goal in 1601 and the 2006 Act defines its concepts simply in terms of what has gone before.
But hang on – what is the role of independent schools in the Big Society? The Tories seem quite happy for the new ‘free schools’ to take on that anarchic mantle, but what will Eton and Harrow be contributing to the Big Idea?
We shall see. Suffice to say that as the caretaker sweeps the floor of the Royal Courts of Justice after the circus has moved on, and the arguments are over, the judges will be considering their verdict and announcing it ‘some time in the autumn’.
Don’t hold your breath.