The contentious question of whether the Charity Commission's guidance on public benefit conforms with charity law is set to be examined by a group of senior judges.
The Independent Schools Council recently applied for judicial review of commission rulings on how fee-paying schools should provide sufficient public benefit to justify having charitable status.
The ISC believes the guidance is not consistent with charity case law and places too much emphasis on the provision of bursaries. Now the Attorney General, Dominic Grieve, has become an interested party to the case in his role as 'protector of charity' and is planning to refer it to the Upper Tribunal (Tax and Chancery).
The Attorney General has powers to refer charity law cases or questions either to the charity tribunal or to its appeal body, the Upper Tribunal. The effect of his intervention, according to charity lawyers, is that the case will be considered by High Court judges from the Chancery Division, who specialise in trust and charity matters, sitting with Alison McKenna, principal judge of the charity tribunal.
Without this move, the case would be dealt with in the Administrative Court, which specialises in judicial review of cases involving public law.
A spokesman for the Attorney General said he wanted to clarify the law that underpinned the guidance. The parties had been given drafts of the reference and a final decision would be made in the light of their response.
The move was welcomed by Tom Murdoch of charity law specialists Stone King, who said the move would boost the tribunals system.
"The Attorney General's involvement in developing the legal principles on which the public benefit test will operate will be extremely helpful," he said.
Matthew Burgess, deputy chief executive of the ISC, said it was not alone in believing that the commission had misinterpreted the law: "The Attorney General's potential reference only serves to emphasise this."
A spokeswoman for the Charity Commission welcomed the Attorney General's involvement and said it was considering the draft reference.