Attempts by the Labour Party to abolish private schools could have the effect of a "bull in a china shop" in other areas of charity law, lawyers have warned.
A motion passed unanimously at the Labour Party conference in Brighton on Sunday committed the party’s next manifesto to include a section saying endowments, investments and properties held by private schools should "be redistributed democratically and fairly across the country’s educational institutions". It also said charitable status should be withdrawn from private schools.
But a number of legal experts have questioned the feasibility of Labour’s approach and whether the ability to, in effect, nationalise private schools would be either possible or without unintended side-effects for the rest of the charity sector.
Julie Robinson, chief executive of the umbrella body the Independent Schools Council, said there was a possibility the abolition of private education would contravene the European Convention on Human Rights.
The ECHR says that the state "shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions".
Robinson said: "The move is an attack on the rights and freedoms of parents to make choices about the education of their children.
"Abolition would represent an act of national self-harm. Tearing down excellent schools does not improve our education system.
"The repercussions would be irreversible and far-reaching, damaging educational opportunities and limiting life chances. Moreover, Labour’s plan would breach the European Convention on Human Rights on the right to choose education."
She said polling suggested only 6 per cent of the public wanted independent schools to be abolished entirely. She claimed that private schools saved taxpayers £3.5bn a year.
Philip Kirkpatrick, head of charity and social enterprise at the law firm Bates Wells, told Third Sector that the policy would probably necessitate the paying of significant compensation by the state, but it could be argued by a Labour government under article one of protocol one in the ECHR that taking property from public schools was "in the public interest".
Mike Pemberton, head of public law at the law firm Stephensons, said abolishing private schools and seizing their charitable assets would be a "legal minefield" requiring "pretty radical primary legislation to be enacted" and likely to face challenge in the courts.
He said the changes to the law required would touch upon trusts, contract law, human rights law and education law, among other areas.
"If you take the analogy that this is a ‘bull-in-a-china-shop’ announcement, it might smash a lot of crockery in a lot of different areas of law," he said.
"These are all the initial bits of law you would need to navigate carefully before running into the shop and swinging your handbag around."
Penny Chapman, partner at BDB Pitmans, said the seizing the property of independent schools would be very tricky to do in legal terms and could amount to the "thin end of the wedge" in terms of its impact on charity law.
"Even if you said that independent schools are no longer charitable, that doesn’t mean all of their assets, which have been given as charity assets over decades and centuries, automatically cease to be charitable," she said.
"Although public schools don’t have many friends, they could whip up considerable support on the principle that the government could confiscate land that has been given to charities over centuries for the public benefit."
Alice Unwin, senior associate at BDB Pitmans, said legislation would have to clearly define what an independent school is in a way that did not meant the government was "accidentally scooping up other education providers in the charity sector".
The proposals come after the Barclay Review in Scotland, which suggested removing business rates relief for independent schools, although the Labour policy goes much further.