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Don't use charity as your battering-ram

Tax perks should be kept and used as a lever on the fee-paying sector, says John McTernan

Class warfare is in the air again. The debate about reform of charity law has been given renewed urgency by recent high-profile scandals which have showed how lax the regulation of Scottish charities actually is. Backbench pressure is mounting on ministers demanding that they speed up the process of legislating for a robust regulatory framework. Inevitably, this has once more thrown up the highly contentious question of the charitable status of independent schools. Ideological axes are being ground by backbenchers of many parties - but, like far too many public policy debates in Scotland, far more heat is being generated than light.

The first problem is that there is a fundamental dishonesty about the debate. A number of weak and false arguments are advanced. A key one is that charity law dates back to 1601 and therefore needs modernising. This is a classic example of the present day fetishisation of change. Some laws - such as the old Edinburgh by-law requiring cow-catchers to be fitted to all trams - do become redundant over time. Others - where they are rooted in hard and clear thinking - do not.

The American constitution does not need to be rewritten because it is more than 200 years old. The King James Bible does not need updating. And the Tudor definition of charities and its common law legacy has, in the words of one observer "served us reasonably well over the past 400 years and there is no good reason to make a fresh start with a new statute comprehensively codifying charitable purposes. To do so would be to risk having to abandon a wealth of illustrative case law."

Of course, logic is not really the point - what is happening is that the prospect of a modern definition for charities being enshrined in legislation has allowed many to dream that they could attack independent schools through the back door. It is the politics of envy masquerading as the politics of modernisation.

The voluntary sector is leading the campaign for a new definition of "public benefit" which would exclude the advancement of education when provided by a fee-paying school. Intriguingly, one argument that they put in private is that charitable status for schools damages the "brand image" of other charities. But this excuse drawn from the jargon of modern corporate Britain cannot disguise the underlying malice.

The second issue is that the assault on independent schools is tactically inept. If there is a case for ensuring that the charitable foundations which support independent schools make their resources more widely available to local communities, then it is surely a profound error to throw away the one substantial area of leverage which government has over this sector. Were charitable status to be removed, then fees would be increased marginally but demand for places would not fall as virtually all parents would be able to absorb the increase. But what would disappear at a stroke would be the opportunity to lean on independent schools to expand scholarships and even to develop real partnerships with neighbouring state schools.

The third difficulty is that the attack on private education is fundamentally misconceived. When one in four secondary places in Edinburgh is provided by the independent sector, then what you actually have is a mixed economy of provision. Ignoring or denying that fact is as absurd as continuing to assert that the earth is flat. Yet, when the Scottish Executive looks at strategies for education in the capital or Edinburgh City Council considers the future of schools provision, are fee-paying schools equal partners in that discussion? What we can see - whether we like it or not - is that, given the chance, many have the cash and the will to make a choice.

Striking a political posture and attacking those schools is not responsible leadership, but scratch most politicians and you find closet monopolists.

And this is the rub - there is a fundamental choice to be made about whether diversity in educational provision should be encouraged or not.

Within the state system choice is hugely important and ministers, having invested immensely in allowing a range of different routes to access higher education, are anxious now to see greater choice of courses - academic and vocational - within the secondary sector.

What they seem to object to is the notion that there should be the possibility of broader institutional choice within the state sector. Social democratic Scandinavia provides state funding for Steiner schools to broaden the diversity of provision. Social democratic Scotland prefers uniformity. Of course, the proposed attack on independent schools will almost certainly not be successful. First Minister Jack McConnell has made clear that he will reject any amendment which attempts to withdraw charitable status. It is likely that he will prevail because most Labour MSPs have realised that it is bad electoral politics to oppose aspiration.

Labour learnt a hard lesson over council house sales - that working-class voters, offered the choice to improve the quality of their family's life, will choose to do that even when they are being told to reject it ideologically. The real debate should be about the hard grind of raising standards for all. Unfortunately, there is no quick legislative fix for that, so it rarely rouses such passion among politicians as the old time religion.

John McTernan is a former Scottish Executive special adviser and a school board chairman.

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