My Lords, I start by saying that I remain strongly in sympathy with the aims of the noble Lords whose names are down on this amendment. Before I address the amendment, I will make a general observation. Charitable status confers on charities a number of benefits, and that is right. Charities deserve our support in fulfilling their purposes. However, those benefits come with responsibilities, which trustees must ensure their charity fulfils. A core purpose of the Charity Commission, helped by this Bill, is to ensure that every charity fulfils those responsibilities and obligations. How they do so is up to them, but do so they must. I repeat: every charity must fulfil them, no matter what they do. It is important that law and regulations be applied and
enforced without favour or prejudice to any one sector of the charitable world. There must be no light touch or heavy hand towards schools with charitable status as opposed to religious groups, or towards animal charities as opposed to environmental charities. They all—I repeat, all—must abide by the law and fulfil their obligations.
With that in mind, I turn to the issue raised by the amendment. To fulfil their charitable purpose, many schools have forged partnerships with state schools, enabling the latter to share private schools’ facilities. This has brought huge benefits, as a number of your Lordships have mentioned. It has widened access to first-class sports facilities, for example, and extended the use of music and drama facilities which might otherwise be unavailable to local state schools. Such partnerships are to be strongly encouraged. I agree with noble Lords that, while there are many terrific examples—and these should be applauded—we could certainly see a lot more of them. A strong nudge to those who have not yet given genuine consideration to the potential for such partnerships to further their charitable aims would surely be widely welcomed.
Where I differ with the amendment is not, therefore, in the aim but in the approach, for it proposes not a nudge but a legislative requirement which would severely limit the charitable purposes that charities which are independent schools can pursue, and I cannot agree that that is the best way forward. There are some important issues of principle here. First, the amendment would single out charitable schools in legislation. As has been mentioned, no other type of charity is treated in this way. Secondly, it would single out only one way in which schools could demonstrate public benefit. Again, no other charity is treated in this way in legislation.
In practice, charitable independent schools can demonstrate their benefit, and satisfy the “public benefit requirement” for the purposes of the Charities Act 2011, in a wide range of ways, including through bursaries—one-third of ISC school pupils receive help with fees—outreach teaching or sponsorship of an academy. Other options include sharing their curriculum or putting on summer schools for state pupils and so on. An important principle of charity law is in operation here. The law places the decision on which approach, or combination of approaches, the charity should take in the hands of the charity’s trustees. That is how it should be, and it should not be for government or the regulator to interfere. Setting particular duties or minimum standards around one particular form of public benefit by one particular type of charity would set a dangerous precedent. I am sure there are those who might like to see particular duties placed upon religious charities, for example, and others who might take a different approach to NGOs from the one they would take to domestic charities, and so on.
Given what I said at the very start, I think it is clear that this is very dangerous territory to get into. Furthermore, it is contrary to the spirit of charity law, which has been tested in the Upper Tribunal. Public benefit must be real and not tokenistic, but it is not for the Charity Commission to dictate to schools, or to any other type of charity, the type or amount of provision they make. That should be a matter for the
trustees of the charity concerned, taking into account the circumstances of their charity.
Alongside that are issues of practicality. Some schools’ circumstances may mean that it is not appropriate for them to share facilities. Some may not have sports or arts facilities or expertise that they can share, or local state schools may simply not need their drama facilities. Overriding the discretion and judgment of trustees, who are acting in the interests of the community as a whole, as to what is the most practical option in their area seems an odd thing to do if genuine local partnership is what we are aiming at.
As well as impinging on the discretion of trustees, making this a matter of law and regulation impinges on the discretion of the regulator, the Charity Commission. Of course, where the commission doubts that an independent school really is serving the public benefit, it can already step in, but it should be allowed to make that judgment in the round and not be required to give special attention to any one particular means of fulfilling a school’s charitable mission. In some cases, I fear that a statutory approach could be positively counterproductive.
As I have said, I am greatly in favour of encouraging more partnerships for the purposes of sharing facilities, but I am not keen to champion that ahead of, for instance, academic partnerships. Singling out one form of public benefit for special treatment in law rather implies a hierarchy in which this particular approach is elevated above others. I am all in favour of nudging schools towards the sharing of facilities, but inadvertently nudging them away from other means of helping the education of others could be counterproductive.
There is another unintended outcome which would, I fear, be very likely if we were to move to legislation, and that is the loss of good will among the very community we are hoping to influence. I have been quite struck by the significant good will from the independent schools sector in relation to partnerships with state schools of this sort. The ISC has made it clear to me that it is in fact very keen to do more to promote best practice in sharing facilities and expertise—for example, in sports, music and the arts. This enthusiasm has, I am delighted to say, been translated into action through a very welcome dialogue with the Charity Commission, which recognises the spirit of and intention behind the amendment. As has been mentioned, this dialogue has resulted in a package of measures, agreed by the two organisations, which will provide just the “nudge” that I think we are all looking for
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The package contains three sorts of measures, of which the first is guidance. The Charity Commission will relaunch its existing guidance entitled Public Benefit: Running a Charity, publicising for schools examples of how to provide benefit for people who cannot afford their fees. This includes examples of sharing sporting facilities. It will also give new examples relating to the sharing of sports, arts and music facilities in its wider Public Benefit: Reporting guidance and in its example of a good trustees’ annual report for schools. The Charity Commission will commit to ensuring that the
guidance links to more examples of what constitutes good practice for independent schools to satisfy the public benefit test, which will include encouraging schools to pursue and develop partnerships. I am pleased that the ISC will publicise the relaunched guidance among all its members. In keeping with what I have said, any additions made to the guidance will be examples of good practice and will not introduce any new mandatory requirements.
The second part of the package is research. There are many claims about the extent of the sharing of facilities between schools, and we should base further debate more solidly on a better understanding of what is actually the case. As has been said, the Charity Commission will therefore commission a research report 12 months from the introduction of the revised guidance that I have spoken of. This is likely to be built upon data from the annual reports from charitable schools, as well as aggregated data that the ISC collects through its census. The terms will be worked up by the commission and the ISC together, and I am sure that the commission would be happy to meet the noble Lord, Lord Wallace, my noble friend Lord Moynihan and the noble Baroness, Lady Hayter, or the noble Lord, Lord Watson, to discuss this. The commission will publish the research and a copy will be placed in the House’s Library, and I would be happy to make a commitment to the noble Lord, Lord Moynihan, about a debate on its findings.
Finally, the ISC is in the early stages of developing a web resource which enables local schools to request involvement in partnership activities. The ISC will request that member schools, on a voluntary basis, provide contact details of the co-ordinators of partnership work at their schools.
This is a substantial package, and it is a voluntary one between the ISC and the independent regulator. I think it is clear that this is to be applauded and encouraged. Over the summer the Charity Commission would be happy to discuss these measures with the noble Lords who have put their names to the amendment. I think it is also clear that moving to legislation would undermine such good will and co-operation as has been seen over the last few weeks. The Charity Commission and the ISC have said that they will continue to engage with interested Peers as their work progresses in the months ahead.
I finish with my overriding point. I share the noble Lord’s aims and sentiments. Where we differ—but I hope not enormously—is on the means. The package of measures I have just outlined sits well with the overall approach of the Bill. The measures are targeted, proportionate and balanced. They seek to underscore trustees’ obligations and responsibilities, and, crucially, to foster partnership. I hope that on that basis the noble Lord feels able to withdraw his amendment.