Of Committees and Commissions

Charitable status is back in the news again, almost. Last week saw the publication of yet another report about the Charities Act 2006, this time from the Select Committee which oversees the work of the Charity Commission.

What will be of interest to schools is the Committee’s views on the public benefit sections of the 2006 Act, which generated so much controversy and led to our successful judicial review of the Commission’s guidance in 2011. The Committee is particularly critical of the Commission’s work in this area: “we are far from happy with the manner in which the Charity Commission has conducted policy concerning public benefit … the present policy for determining questions of public benefit has proved disastrous in terms of the time and commitment of the Charity Commission and the charities involved”.

Whilst we're grateful of the support offered by the Committee to our sector, we can't help feeling that its conclusions in this area are unhelpful. For it recommends that certain contentious provisions of the 2006 Act be repealed and that Parliament address the whole area of public benefit again in new legislation.

First, the provision that the Committee wants to repeal - a one-liner in the 2006 Act reversing a so-called ‘presumption of public benefit’ - is not one that has much bearing on schools. Our judicial review confirmed that the ‘presumption’ had little practical relevance for school charities, and therefore the 2006 Act changed very little when it repealed it. Repealing the repeal now would have even less impact.

Secondly, whilst the Committee is right to deplore the wasted resources spent on clarifying the meaning of the 2006 Act and its impact on charitable schools, the reality is that our judicial review provides clear and workable guidance for schools and their trustees on what public benefit means, both in theory and in practice. The law is, to all intents and purposes, now settled. Throwing all the cards up in the air again, and making sense of any resulting new legislation (which, let’s face it, will always be a political compromise when it comes to independent schools) only risks more uncertainty, expense and quite possibly renewed litigation.

Let’s get this into perspective. Significant though our sector is in terms of educational impact, we make up around 0.5% of all registered charities, and around 1% of all registered educational charities. Do we really need another Charities Act, particularly as we’ve only just finished litigating the last one?