Conservative plans to ask the Charity Commission to change its line on private schools if the party win the forthcoming general election would amount to political interference in a quasi-judicial body, according to Stephen Lloyd, senior partner at charity law firm Bates Wells & Braithwaite.
Michael Gove, the shadow education secretary, told The Independent last month that an incoming Tory government would hold immediate talks with the commission to persuade it to allow a wider range of activities to count towards the public benefit provided by fee-charging schools.
Gove shares the concerns of many private schools that the commission focused too narrowly on means-tested bursaries in its public benefit assessments last year. "We want to talk to people at the commission about this," he told the paper.
But Lloyd condemned the pledge. "The commission, essentially, has delegated authority from the High Court," he said. "If the Government wants to change the law, it has to go through the political process."
Lloyd endorsed the comments of Richard Fries, former chief charity commissioner, who responded to Gove's comments in a letter to the newspaper. Fries said the issue showed that the commission needed a "proper independent status".
Fries added: "The commission's interpretation of the law may well be open to disagreement, but it is not for government to challenge it. That is what appeal to the tribunal and the courts is for."
Simon Weil, a partner at Bircham Dyson Bell, said the Charities Act 2006 had given the commission a mandate to issue guidance on the law, but the commission had gone further and reinterpreted existing case law in a modern context.
"To interpret the law is to make the law," he said. This made the commission vulnerable to attempts by politicians to challenge its interpretations.
A spokesman for the Conservative Party said Gove's statement was a response to a question. "As an elected government, we would have a duty to tell people when we think they have got things wrong," he said.
A spokeswoman for the Charity Commission denied the commission took account only of bursaries.
"Decisions on how the public benefit requirement operates rightly rest with the Charity Commission as the independent regulator of charities in England and Wales," she said.