Editorial: Public benefit in the courts' hands

Following the Attorney General's decision to refer the matter of public benefit regarding independent schools to the charity tribunal, Stephen Cook asks what the implications will be of such a decision being in the courts' hands

Stephen Cook, editor
Stephen Cook, editor

The previous government decided not to try to define public benefit in the Charities Act 2006, preferring instead to ask the Charity Commission to come up with guidance based on case law. Sceptics pointed out at the time that this was a formula for disagreement and the whole thing would end up in the hands of the judges.

And so it has come to pass. Lawyers have been unable to agree what the case law means. The independent schools lobby was never likely to be satisfied with guidance requiring its members to change. And the backwoodsmen, relying partly on the fact that the commission's chair is a member of the Labour Party, saw the whole thing as a political vendetta against public schools.

The upshot is that the Attorney General has referred the question of public benefit by independent schools to the charity tribunal, which will transfer it to the Upper Tribunal, which is likely to end up considering all aspects of public benefit, not only the issue of independent schools.

To have the matter settled by the courts like this might not be very democratic, and it is worth bearing in mind that a lot of senior judges went to independent schools. Angels will dance on the heads of many pins before we get a result. But that result might be no worse, and could well be better, than anything Parliament could have produced.

But this should surely have happened a year ago, when the extent of disagreement and dissent about the commission's guidance was becoming evident. The commission itself could have referred the matter to the tribunal, but perhaps lacked the necessary humility. The previous Attorney General could have done it, but might have seen it as an admission of the government's failure.

Instead we have had to wait for a new government, which in turn has motives that may be partly political. But at least the thing is under way at last.

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