Over the years, the Scottish Parliament has had more than a few “finest moments”. One such was the process and especially, the debates around creating Scotland’s own charity framework. The narrow point of interest, certainly as far as the media was concerned, was the potential removal of charitable status for the nation’s independent schools.
One of the things that the law – the Charities and Trustee Investment (Scotland) Act 2005 if you are interested – did was establish some rules around who could be a charity. A charity would be an organisation working to defined ends and have to meet a test that included working out if its activity was for the public benefit. And despite a fair bit of verbal hand-wringing about how dismayed they were that this issue had come to dominate proceedings and that making private schools the fall guys was not the intention, MSPs made their views plain in the legislation they chose to pass.
They signalled a very strong and good intention to the new charities regulator in Scotland, OSCR. Since then, the government-funded body has done its best to thwart these good intentions and shied away from the fight. It has taken years to get where we are now but after three years of investigating the extent and nature of the supposed public benefit of four of Scotland’s fee-paying schools, apparently the regulator is satisfied that there is one and they can keep their charitable status.
Why were the schools so keen to keep it? For the tax breaks effectively. It saves them a fortune on tax and indeed on business rates. In a supreme irony, you, me and the remaining 95% of the population who would find the doors barred if we tried to enrol our weans at these institutions, also help pay for wealthy weans to get the best education their families’ money can buy through the loss of tax revenue.
And if that wasn’t quite enough irony for you, in England, where the law is much looser on public benefit and charitable tests – largely because Blair bottled it – the Charity Commission, the body which regulates charities in England and Wales – has applied much tougher tests so that it can junk private hospitals and schools from charitable status.
OSCR has today justified why it spent three years on this matter, arguing that its close scrutiny has resulted in wider access to the schools and stronger partnerships with state schools to access resources. But that is not the purpose nor function of the country’s charity regulator. Not only has it ignored its original legislative steer but it has now also over-extended its remit.
The idea that schools which charge the majority of its pupils upwards of £12,000 a year to attend should be considered charitable bodies is anathema to the very concept of charity. The Scotsman had a pious leader on the matter, sucking up, no doubt, to the mores of most of its remaining 40,000 readers, while reminding we plebs that some of these schools started out as charitable bequests, founded by philanthropists like George Watson. Yes, but that was a very long time ago. Since then, private schools in Scotland – most of which are concentrated in Edinburgh – have evolved into bastions of privilege.
Children who go to them – and I know some very nice ones – are not so different from other children but they do enjoy an education, in its widest sense, denied to most children in the state sector. Their parents pay handsomely for this, and I know that many struggle to do so, but that is their choice. That by itself does not justify their children’s school being allowed to call itself a charity, with the attendant benefits and tax breaks.
The wider issue is what to do about these government and public bodies which thwart – regularly – the democratic and legislative will of the Scottish Parliament. I and others could produce huge lists covering the areas where policy has not translated into practice, even where statutory duties have been created. Another fine example this week has been the consultation by Transport Scotland on the future of rail services in Scotland. Despite the fact that we have a Scottish Government as well as a majority of parties and MSPs favouring investment in and promotion of public transport links as a key part of our infrastructure, Transport Scotland wants us to travel in the opposite direction. Under whose mandate?
Worst of all, there is a game played at all levels. MSPs might froth a bit about such happenstances but then they move on, doing little to address the problem with the post-legislative scrutiny powers their committees have. The Scottish Government points to the fact that it is not directly responsible for implementation, that responsibility sits over there somewhere and what can it do? Government officials do not see it as their responsibility, except only rarely, to follow up on legislation, policy and guidance lovingly crafted, often over years, to see if it is actually happening. And local authorities, health boards and other public bodies upon whose shoulders responsibility usually rests to implement the requirements of laws and policy guidance either put it in the bottom drawer and hope everyone forgets about it, make a half-hearted effort, re-interpreting the strict definitions as they go to “suit their local needs” or simply bleat nae money as an excuse for non compliance.
It simply isn’t good enough.