Two of the three judges who will hear the forthcoming case on fee-charging schools and public benefit went to such schools themselves, those involved with the case have been told.
At a preliminary hearing of the charity tribunal yesterday the lead judge, Mr Justice Warren, said two of the judges had been privately educated. The main hearing that will take place next month.
Two of the three judges had children, he said, and both of those judges had sent their children to fee-charging schools for at least part of their education.
One judge had a child who was currently attending a fee-charging school, Warren said. He said that all of the fees had been paid up to date.
Francesca Quint, a barrister at Radcliffe Chambers who attended the hearing as the representative of the National Council for Voluntary Organisations in its role as a party to the case, said Warren had volunteered the information and had made it clear he was confident that it would not prejudice the outcome of the case or the impartiality of the judges.
Quint said Warren had made it clear that the hearing would not be a debate on the question of whether independent schools should exist, and would restrict its scope to the questions raised by the Attorney-General and the terms of the judicial review.
She said Warren had made the point that, if it were deemed not charitable to run a fee-charging school that did not provide any bursaries or reduced fees, it would be difficult to argue that providing bursaries would make that school charitable.
"He raised the issue but he was not seeking an answer to it," Quint said. "He was using it to illustrate the difficulty of the questions that have to be considered by the tribunal."
At the hearing in May, the tribunal will consider an application by the Independent Schools Council for a judicial review of the Charity Commission’s guidance on how fee-charging schools can demonstrate that they provide public benefit.
The hearing will also consider a reference from Dominic Grieve, the Attorney-General, which asks it to clarify how the public benefit test applies to fee-charging schools.