An amendment to the charities bill that would have created a new legal duty for independent schools to meet their public benefit requirement by sharing facilities with local schools has been defeated in the House of Lords.
The amendment was voted down after the Charity Commission gave assurances that it would pursue a "non-legislative route" on the issue.
This will include updating its guidance on public benefit to include more examples of schools sharing sports, arts or music facilities, and promoting its guidance Public Benefit: Running a Charity more widely.
Peers had raised the question of the public benefit of charitable independent schools and argued that some of them could do more to share their facilities for sports, music and the arts with schools in the maintained sector. The amendment included requiring new statutory guidance from the commission on the minimum that independent schools should do.
The amendment was defeated on Monday night after Lord Bridges, for the government, warned that setting particular duties or minimum standards around one particular form of public benefit by one particular type of charity would set a dangerous precedent.
"I am sure there are those who might like to see particular duties placed upon religious charities, for example, and others who might take a different approach to NGOs from the one they would take to domestic charities, and so on," he said.
"I think it is clear that this is very dangerous territory to get into. Furthermore, it is contrary to the spirit of charity law, which has been tested in the Upper Tribunal. Public benefit must be real and not tokenistic, but it is not for the Charity Commission to dictate to schools, or to any other type of charity, the type or amount of provision they make."
In a letter to the Independent Schools Council, published today, Sarah Atkinson, director of policy and communications for the Charity Commission, expressed its concerns about the amendment.
"As charity law regulator, we are concerned that introducing this new duty on a particular sub-set of the registered charity sector into primary legislation could have wide and unintended consequences, which we have not been able to consider fully," she wrote.
"It is an important principle of charity law that trustees have the freedom to make decisions about how to carry out their legal duties in the appropriate way for their charity’s individual circumstances."
A year after the revised guidance was published, she said, the commission would publish independent research on the impact of initiatives to increase partnership between charitable schools and the state sector.
The ISC is to develop a web resource that will enable local schools to request involvement in partnership activities with independent schools.