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Bevan  re-visited

1008   7 June 2004  

Charities
and Public Schools

Nowhere does the gap between lawyers and laymen run deeper than in their understanding of "charitable status".  Lay perceptions are dominated by the modern practice of raising money for those in need, first by tin-rattling collections then by more sophisticated means.  For lawyers, the status of "charity" denotes merely the commitment of funds, in perpetuity, to the exclusive pursuit of the public rather than private objectives, public gain rather than private profit.

The clue to understanding this gap lies in the history of the last 500 years. During the 16th century, as the Welsh "Tudor State" became more active, institutions developed.  The Monarch wanted his richer subjects to put their money into public projects - giving to the troublesome poor, educating future leading citizens, building roads and bridges and prisons, looking after the sick - there was a range of public projects which the "Authorities" sought to encourage.  And the Judges supported this admirable project, by creating a new legal framework, as a matter of precedent without Parliament, to deal with conflicts within the sector.  They took the doctrine of private trust law, and spun out a new concept of a "public" trust, in the context of which Trustees were under a legal duty to pursue exclusively public objectives. 

The Monarch had no alternative to proceeding in this way.  And the merchants and professionals of the "rising middle class", desperate for social advancement, responded accordingly.  There was in any event no modern apparatus of tax collection, with which the acquire the funds and spend them centrally.  The practice therefore emerged of favouring, in incidental ways, the donation of funds for these public purposes - preferably, the willingness to manage the whole public project locally, for the greater public good.  Donors were encouraged to build the roads and bridges, build and manage the "houses of correction", run the schools "for poor scholars" themselves.

The term "charity" came to be attached to this practice, simply to distinguish its public purposes from the private fiefdoms of the merchants, lords and squires, the wealthy citizens of Tudor England and Wales.  And it had strong religious overtones, in the century which saw Henry VIII become the Head of the Church of England himself.  But as with all Government initiatives, corruption started to creep in at an early stage.  Locals, in particular rogue priests, started to take advantage of the privileges, with bogus collections and the diversion of charitable funds to private purposes.  And the situation got so bad that the Elizabethan Parliament has to intervene, in 1601 shortly before Elizabeth's death, to regulate the sector more effectively.

And the Courts, using the framework of that 1601 Act, have developed the sector ever since.  That meant that during the 19th Century, which saw the great expansion of the English public schools, they were treated as having "charitable status" - simply because they fell within the scope of the 1601 Act, as being for the provision of education.  That classification has always been suspect as a matter of law, but the modern Judges have decided that the errors are now too fundamental and long-standing to be changed by them - only Parliament, they say, can now rectify the situation (and I agree with that view).  These are the problems.

(1)  Low Income Relief  The principal thrust of the original 16th century classification was the education of poor scholars - i.e. the charitable assistance was means-tested.  It is for that reason that the public schools provided (and some continue to provide) extensive scholarships, funded by private endowment.  However, as the movement has expanded, these have become a fig-leaf, not a foundation, for the public-school sector.

(2)  Exclusivity  #As a matter of law, charities must always be pursued exclusively for the public benefit - and the Charities Bill now published reiterates that principle.  "Education", it is argued, is systemically for the benefit of all - all education.  It is for the benefit of the entire society that all its children should be educated, including the children of the wealthy, so the argument goes.  Yet it is common knowledge that the principal advantages of public-school attendance, however good the education, is social and political.  The pupil gains access to all the right networks of power and influence, even if a dunce.  On a robust interpretation of the existing law, reformers argue (and I agree) charitable status should be withdrawn from these institutions on this ground alone.

(3) Trifling gimmicks  Some public schools, apprehensive about the fragility of their legal status, engage in "socially good works", assisting local "poor scholars" by allowing them to come an play on the playing-fields of Eton, and so on.  These puny and puerile attempts to play the system ought to be treated as peripheral to the principal issue, and dismissed.

• PS  That does not mean, however, that I favour the "abolition" of these schools, their prohibition by law.  I cannot imagine a society in which it would be illegal for citizens to organise their own schools or educate their own children: indeed, I think that the process of independent innovation in schooling should be made easier rather than more difficult.  But not, definitely not, by way of the subversion of charity law.

Where do you stand?  Drop me a line

1009  9 June 2004  

The Internet 
Should it be regulated?  If so, how?

Our trenchant Australian commentator Mike Davis returns to the fray, on a new subject...

Roger WE      Mike – you are wrapping up too many issues, into the same bundle.  Very few societies attempt to penalize “views and opinions”, however strongly expressed, even though many now intervene to inhibit the promotion of racial and similar hatreds and attacks.  The overall civil wrong of “defamation” relates only to attacks on a person’s honesty, morality, moral reputation, good name and so on – to which even you, with your tough Aussie skin, might well take exception!  And if you had the money, you could certainly sue your Chilean attacker, in Chile, for that defamation!   Your problem would be financial, not legal.  In the current Canadian case, the Plaintiff is the powerful Washington Post, which is not short of a bob or two…   The question is: if you sued the Chilean, should the Chilean Court go on to hear the case?  Your answer seems to be “No…”

Mike This is happy news for me as I have long held that the Internet should be untaxed and unrestrained by laws of a civil variety.  I believe in maximum freedom, but also believe in ‘what goes around, comes around’. Those who use the Internet to target others, must expect to have these others take action in defence of themselves.  To be blunt, if Wahhabi jihadists cry out for ‘Death to the Jews’, they have to expect that these same Jews are capable of delivering that ‘death’ to them instead. 

Roger WE   You move on to deal with the publication of criminal threats, which is quite a different issue – hundreds of Court systems treat such threats as crimes already, and they are heavily punished.  I certainly do not approve of your “self-help” solution, nor do I endorse it in any way – the essence of civilized society is that revenge attacks, tit-for-tat killings, should all be countered by the Police and civil authorities, through legal proceedings.  Vigilante groups are close to terrorists, and constitute a profound threat to all civic order. 

Mike  In short, leave the Internet as a ‘free fire’ zone, but remember that restraint is essential for civil society. Those who do not show restraint cannot expect to have it shown to them. The Imam Abu Hamza is now learning this valuable lesson.

Roger WE   That is simply not enough. Yes: “restraint is essential for civil society”.  But we must use all our institutional options to reinforce the influences making for constraint.  And that means developing some civil law principles to regulate this new zone of human intercourse. Yet there is no world government, to pass world laws.  There are 200-or-so separate Court systems in the world, enforcing over two hundred systems of law, reflecting a wide range of different “restraint” principles.  It may well be that the Internet should be made the subject of a new form of multilateral UN Treaty, seeking a new consensus on the principles to guide international Internet management.  Otherwise, this whole sector will be governed only by Police and military  considerations.  My own website has now received 50 (fifty) hits from the US Government and Department of Defense – the US military are certainly active, but there are fewer initiatives to bring civil order to this great new medium.

Mike   Best regards and luck for Election Day.  I don’t fancy Blair, but if this boyo Davis was able to vote in Swansea, I’d vote Labour.

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