When it brought in the Charities Act 2006, the last Labour government left it to the Charity Commission to try to ensure that independent schools provided sufficient public benefit to justify their charitable status and the tax advantages that go with it.
The commission made valiant efforts to set up a system to oblige such schools to share some of their advantages with state schools and the wider community, partly by providing bursaries. It made some progress, but always in the face of accusations that it was implementing an essentially political agenda, and the matter ended up, as many had predicted, in the courts.
The Upper Tribunal reasserted the primacy of trustees and decided that the commission was being too prescriptive. As a result, this particular road towards a greater contribution by independent schools has to some extent been closed off, and this week the Labour party announced that it would attempt a different route if it formed next government.
The party has received legal advice that could lawfully withdraw the 80 per cent charity business rate rebate from independent schools if they failed to implement a School Partnership Standard which would include running summer schools, sponsoring academies, helping state schools with university access and generally making a meaningful impact on state education.
It is not yet clear who would make the crucial judgement about whether independent schools reached the required standard – the Department for Education? Ofsted and the Independent Schools Inspectorate? Local Education Authorities? But at least it won’t be Charity Commission, and that is no doubt the source of some relief at Drummond Gate.
The Upper Tribunal judgement pointed out something that Labour should have taken note of before the 2006 Act – that getting the private schools to do their bit for wider society requires, at the end of the day, political resolution. With its proposal over business rates, worth £165m to private schools last year, the party appears now to recognise that, which is progress. It might also win some advantage with the wider electorate, but the downside will be another die-hard rearguard action from the private schools lobby and their political and media allies.