The public benefit test for independent schools in Scotland will take account of the level of fees they charge, under an amendment to the Scottish Charities Bill.
The amendment was passed last week by the Scottish Parliament's communities committee and backed by the Scottish Executive. The level of fees will now form part of the judgement of the Office of the Scottish Charity Regulator when it decides, under the new law, whether a school should retain charitable status.
Scotland's independent schools, including the Prime Minister's alma mater Fettes College, already faced having to prove that they provide public benefit to the wider community to keep tax and rates benefits that come with charitable status.
The Bill contains a short definition of public benefit, rather than relying on Charity Commission regulations and case law to determine whether charitable status should be granted, as was proposed with the Charities Bill in England and Wales.
Under the legislation, the OSCR will have to assess "whether any condition on obtaining that benefit is unduly restrictive" in the case of each fee-paying independent school. This now includes the phrase "including any charge or fee".
Scotland's deputy communities minister Johann Lamont admitted that some independent schools would lose their charitable status when the Bill becomes law.
She said: "This is not about an attack on independent schools, because there will be independent schools that will be in (the charity sector) and those that will be out."
The amendment was put by East Lothian Labour MSP John Home Robertson and supported by the committee convenor, Labour MSP Karen Whitefield, as well as Liberal Democrat, SNP and Green members.
Whitefield said: "If parents want to make a choice to send their children to a particular school and pay for that, then that's entirely their choice.
However, I do not believe the public purse should give them a subsidy to exercise that choice."
The headmaster of Gordonstoun School in Elgin, Mark Pyper, warned that the amendment could mean all schools will fail the test or that the test itself would be deemed invalid.
He said: "How on earth is the regulator going to quantify 'unduly restrictive' when the average person in the street would say they can't afford school fees?"
- The Charities and Trustee Investment (Scotland) Bill introduces a test under which charities will have to show that they satisfy at least one of 13 charitable purposes
- The Bill is now in its second stage, at which MSPs can introduce amendments
- If it passes the third and final stage, it should receive Royal Assent by the summer.