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Public Schools
Charity Status

The Government’s attempt to remove the charitable status of “public schools” has run into trouble – again.  This issue has dogged the Labour Party throughout my 41-years of membership.  Every initiative has foundered on the rocks of fuzzy thinking. And the current Charities Bill, floundering its way through Parliament, could meet the same fate. 

Many Labour members, indeed many LibDems, are repelled by the phenomenon of English private education, as it originated and flourished before 1902.  That was the year when the State went into the secondary education business.  Most English public schools date back to an earlier period, to the end of the 19^th century.  Many voters on the Left instinctively favour public education (as do I), and would like to outlaw all private alternatives (whereas I do not).  They would like to prohibit private education, and simply declare the public schools to be “illegal”. 

They usually accept, however, that that would be impracticable, if not impossible.  The wealthiest English parents would continue to educate their children privately, abroad.  One can imagine Eton moving to Connecticut, Winchester to Paris, Harrow to Amsterdam, perhaps even just hopping over to County Kerry or the Dublin suburbs.  In any event, there would be strong human rights case against such State intervention.  For my part, I would find it uncongenial to live in a society which made it illegal to spend money on the education of ones children.  For these reformers, the path of prohibition is effectively closed.

They therefore switch to attacking the tax-exempt charitable status of “public schools”.  If Eton cannot be outlawed, it should at least be stripped of the tax-exemptions of charitable status.   The value of those exemptions, to the public-school sector as a whole, is said to be over £150m.

At this point, the reasoning gets more complicated – confounding attempts at reform.  For most of these schools were founded at a time when “tax exemption” was hardly an issue – because taxes were so low!  These 19^th-century schools (including the marvellous Quaker school which I attended, Leighton Park School in Reading) were not founded in order take advantage of tax-exemption.  They were charities by automatic operation of the law, because they were for the provision of education.  They did not even need to "register" - indeed, at that time, there was no process of charitable “registration” at all: an organisation was either charitable or not, automatically, depending on its founding documentation and the purposes it served.  And the provision of schools and scholarships, and the furtherance of education, was undoubtedly a charitable purpose – and had been since before 1601. 

Here, pause to consider this: historically, over a period of 500 years, the legal status of “charity” was simply a pigeon-hole used to describe all those activities which the early “State” wanted to encourage, without having to run them itself.  The circumstances were quite different from today, when the State has assumed many of the functions originally performed by charities. 

"Charity" was not a matter of tin-rattling, collecting from ordinary people and distributing to the poor and deserving.  By granting to charities perpetual protection against private depredation, the idea was to persuade wealthy individuals to devote their money to such causes, for an eternity and for the good of their souls - there were strong religious overtones of charity status.  In the 17^th/18^th centuries, these "charitable purposes" included building public highways, bridges, and the construction and management of prisons.  These were all "charitable purposes", although they are categories which have now fallen in disuse.

Certain charitable purposes have, however, held their own throughout those 500 years – the relief of poverty, the provision of schools and scholarships, the promotion of religion, relief of the elderly, and many health-related charities.  These now constitute the backbone of the charitable sector.  The provision of a school constitutes a charitable purpose, and it will be extremely difficult for the Government to restrict any legal change to the "public boarding schools" which it specifically wishes to target.  That is where, I believe, this further Government initiative is floundering.

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The civil wrongs of false imprisonment, extortion, assault, malicious falsehood all assist the citizen, in countering the nastiness of State officials.  Yet there is no civil wrong of malicious administration itself. 

There ought to be. And if there were, Parliament and the Blunkett Home Office would be guilty of it, every day.  One does not need to be a conspiracy theorist, or to attribute to the Government the darkest of motives, to be deeply affronted by the administrative asylum-control regime now in place within the Home Office.

Let me give three of the most glaring examples of this systemic injustice, both concerned with the management of Legal Aid.  One of the nastiest features of the Blunkett regime is its deliberate manipulation of the Legal Aid system to make things more and more difficult for incoming asylum-seekers.

First: the assignment of Legal Aid.  For asylum-seekers, normal procedures to not apply: a Solicitor does not "apply" to the Legal Service Commission for Legal Aid, as a third-party.  Instead, a limited number of firms are licensed for asylum/immigration work, and those firms are authorised to "award themselves" legal aid by the mere fact of being willing to take on a case.  This one-stop procedure is said to be justified by the need for speed, particularly with the very, very short time-limits that have now been imposed upon asylum-seekers. 

• In principle, there is nothing wrong with this system: the real nastiness lies with the very short time-periods allowed for action, and with the sheer bureaucracy of the subsequent administration of the Solicitors' affairs.  For the Solicitor has just five paid-hours, in the first instance, to appraise a case: thereafter, new applications must be made for each further unit of five paid-hours.  And there is the ever-present threat that, if an over-run occurs, the firm will (upon audit of their books) have that paid-time simply disallowed.  These technicalities are so irksome that many, many firms have in the past twelve months simply withdrawn from this work-sector altogether, as they are perfectly entitled to do.

Second: Last Spring (April 2004) legal aid was simply withdrawn for professional attendance at the key Home Office interrogation - the so-called "Interview" held at one of the principal Home Office centres (Croydon, or Birmingham, or Liverpool).  The use of the benign term "Interview" should not obscure the interrogatory function and style of this encounter, nor the operations of the trained interrogators conducting the interview.  The position now is that asylum-seekers, whatever their knowledge of English or experience of Western society, must appear before the Home Office interrogator (working with an "official" interpreter) alone, without professional or other support. The Law Society has been battling the Government to reverse this infamous decision, but to no avail.

Third: Solicitors are now required to apply, at every stage of their work on any particular case, the "Merits Test".  That means that, if at any stage they reach the conclusion that the applicant has "less than 50/50" chance of success, they must withdraw from the case and stop spending any further public money on it.  The decision is an agonising one: even the public service law firms (Refugee Legal Centres, and Immigration Advisory Services) are required to withdraw, because they are in practice dependent on Blunkett gold.  This awful jurisdiction falls to be exercised, in many cases, by quite junior clerks to which the dossiers have been assigned.  For the qualified lawyers, the decision is an agonising one, which goes against the normal professional grain - for once you have taken on a case, as a lawyer, you are ethically constrained to do your best for your client, right to the very end.  Blunkett has destroyed that principle.

• The cases that I take up, on a charitable pro bono basis, are cases which have been rejected by licensed Solicitors for some reason, usually under the awful Merits Test.  Without my intervention, these asylum-seekers would be left without any representation at all.  I am currently considering the creation of a new national charity - Asylum Volunteers - to plug this awful gap - which is likely to widen, not diminish. 

I believe that UK society will survive this period of brutish nastiness which the Labour Cabinet has chosen to adopt, as a deliberate electoral tactic to "dish the racists".  The strategy is in my view misconceived, and will be ultimately unsuccessful, politically - but I am powerless to influence my Party on this score.  I say that UK society will retain its powerful international reputation as a fair society, in spite of the current nastiness, and that we will continue to attract asylum-seekers for that very good reason. 

• It is the object of the new Croeso (Welsh for "Welcome") charitable trust to strengthen the welcoming processes of our society, and consolidate our reputation for fairness and a deep respect for human dignity.

Finally: this bureaucratic nastiness reflects another vicious twist of judicial reasoning.  Article 6 of the European Convention of Human Rights, holds -

• "In the determination of his civil rights and obligations... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

This (one might have assumed) would apply to all asylum proceedings.  But it does not, because such proceedings do not relate to a "right or obligation".  For the Judges, the grant of asylum is a prerogative act (essentially "of the Crown", as a matter of unfettered sovereignty) and Article 6 is not therefore engaged.  No "rights" are being determined, merely a request for a favour.  I have tried to argue breaches of Article 6, only to meet judicial rejection.