Examination of Witnesses (Question Numbers
81-99)
DAME JUDITH
MAYHEW JONAS,
DR ANTHONY
SELDON AND
SIR SIMON
JENKINS
2 JULY 2008
Q81 Chairman: I welcome our witnesses
today. We are delighted to have before us Dame Judith Mayhew Jonas,
chair of the Independent Schools Council, and Dr Anthony Seldon
who is headmaster of Wellington College and a political biographer.
We hope to be joined by Sir Simon Jenkins who is on his way as
we speak. As you know, we have an interest in the work of the
Charity Commission following the Charities Act on the public benefit
issues as they relate to various sectors. We wanted to spend some
time today talking about the impact of public benefit work in
relation to education and fee-paying schools in particular, which
is why we have asked you to come along. Does either of you want
to say anything by way of introduction or shall we just fire off
some questions at you?
Dame Judith Mayhew Jonas: We are
happy to answer what you want to hear about.
Q82 Chairman: The impression from
the outside is that the challenge facing the independent schools
sector in meeting the public benefit test is causing some excitement
and alarm around the place. Can you tell us how as a sector you
are responding to this? Is a uniform approach developing or do
people go off to do different things? Is it a cause of consternation?
Dame Judith Mayhew Jonas: I do
not think it is a cause of consternation for our schools and governors
except inasmuch as the climate has created a degree of uncertainty.
Independent schools take public benefit very seriously. From Tudor
times to the present Act, education is still a charitable purpose
and educating children is seen to be for the public benefit. If
one takes the narrow view our schools fulfil that narrow requirement.
However, given their charitable ethos and the fact that many of
them have been undertaking broader work, in some cases for centuries,
we have many examples of best practice of what is for the public
benefit. What is exciting about the current debate is that it
has stimulated schools to share best practice, so whether it is
sports fields, music, bursaries, taking on academies or doing
summer schools or broader community work, we now see that schools
do not do this individually; they share best practice. We have
had four very well attended conferences on what public benefit
can mean to small, medium-size and large schools. We are delighted
that the debate has raised perception and given rise to a lot
more exchange of best practice, and the more variety we get in
what schools do in this voluntary outreach, which technically
is what it is, the better as far as we are concerned because it
takes on the debate.
Q83 Chairman: But if it is all terribly
exciting why do some people get into a great tizzy about it?
Dame Judith Mayhew Jonas: I believe
it is media-inspired; they have whipped up a frenzy. Given that
our governors are accountable and responsible as trustees of charities
they naturally worry if they read hysterical comments or think
they are not fulfilling the purposes of the charity. That has
caused panic. There has been a whipping up in the media of what
this means and a lot of it has been ill-informed. We argue that
most of the schools fulfil their charitable purpose of education
for the public benefit, which is educating children, but we acknowledge
that most of them go well beyond that and do a huge range of other
things in communities, working in partnership with maintained
schools. It is really the media climate that has caused the concern.
Q84 Chairman: It is normally we who
blame the media for everything, but I have been reading some of
the stuff from people inside the sector and parents. They think
that they are under attack.
Dame Judith Mayhew Jonas: I know.
Our role is to calm and inform the debate and share best practice
which is what we are doing.
Q85 Chairman: You certainly have
a calming influence today. Dr Seldon, what do you think about
all this?
Dr Seldon: Unlike Dame Judith
who heads the Independent Schools Council, I do not head anything
other than my own school. Some would say that the extent to which
I am master of my own college is debatable. I think that it has
provoked quite a lot of resentment in the sector because a good
deal has been going on for a long time. Forty years ago I went
to one of the independent schools, Tonbridge, where a great deal
of work of a charitable nature was being done. I think the resentment
arises simply because of what is regularly repeated in the media:
first, that only now schools are starting to do charitable activities;
and, second, that the only reason they are doing it is because
of fear of losing charitable status. That upsets people because
they see it as wrong and at best it is rather patronising and
at worst demeaning.
Q86 Chairman: Is the proposition
that you think all private schools will ipso facto pass
the public benefit test?
Dame Judith Mayhew Jonas: Yes,
they will.
Q87 Chairman: Those that are just
routinely going about their business and charging fees and taking
in children?
Dame Judith Mayhew Jonas: And
educating them.
Q88 Chairman: You think that by itself
that is sufficient?
Dame Judith Mayhew Jonas: From
Tudor times onwards education has been a charitable purpose in
its own right and for the public benefit involves educating children.
The 2006 Act did not change that. The Charity Commission as regulator
is currently publishing guidelines which we hope will take into
account the various comments submitted to it by charity lawyers
and others, but we believe that most of our schools will pass.
Not only will they pass but most of them undertake far more than
just the bare activity of educating children because of the charitable
ethos running through these schools which means they do a lot
more because they are good citizens and participants in the broader
community. Partnerships with maintained schools have been going
on for decades; it is not new. The sharing of facilities, summer
schools and these sorts of things are not new; they have been
going on for a long time. We believe that most of our schools
will pass.
Q89 Chairman: I am puzzled by this.
I wondered from what you were saying whether you thought you would
get into some sort of legal tussle with the Charity Commission
about what is said in the guidance, but I read: "Where a
charity's charges effectively restrict the charitable benefits
it offers to people who can pay then it must provide other opportunities
to benefit those people who cannot afford those charges, including
people in poverty." A routine fee-paying school which simply
does what I understand such schools do, which is to take fees
and educate children without, as far as I am aware, having a wider
social mission—though you tell me some do—will not
pass that test, will it?
Dame Judith Mayhew Jonas: We disagree
with the current proposals of the Charity Commission. We believe
that as they stand they are in danger of being ultra vires.
Q90 Chairman: Now we have gone somewhere.
You started off by saying this is all terribly exciting and now
you say you disagree with it.
Dame Judith Mayhew Jonas: We disagree
with the way in which the regulations are currently proposed.
There will be a lot of reaction to that. When the regulations
come out in final form obviously all fee-paying charities, whether
they be independent schools, universities, arts institutions,
religious institutions—whatever it happens to be—will
have to look at them to see whether they are within the law. The
Charity Commission is a regulator, not a body that formulates
policy, and its regulations must be within the scope of the legislation
that Parliament passed in 2006. At the moment we feel that some
of its regulations go beyond the scope of the Act and are slightly
unclear, but they are to be looked at when they come out in final
form.
Q91 Chairman: That sounds to me like
a shot across the bows rather than something about which you are
terribly excited.
Dame Judith Mayhew Jonas: We are
excited about the fact that people now focus on the really good
things that are happening in the sector.
Q92 Chairman: I am becoming confused.
I read Dr Seldon's interesting article. On the whole, you think
that public benefit is a very good thing, but, as I understand
it, you are saying to the sector that some of the things it believes
will produce public benefit will produce disbenefit, which is
simply to take a few poor children and put them into these schools.
You think that that will do harm to education in general, do you
not?
Dr Seldon: I cannot make the point
strongly enough that here I speak as an individual. There are
three points on which I disagree. One is that I think the Charity
Commission should have taken into account that parents at independent
schools are paying fees. In my experience of having run Brighton
College and being acting head of another school, St Dunstan's
in Catford, these people make immense sacrifices to pay the fees.
Maybe some of you around this table, perhaps all of you, send
your children to state schools on pretty good salaries, often
better salaries than those enjoyed by parents who make sacrifices
to send their children to independent schools. First, I think
that the sacrifices parents make and the fact that they pay twice
should be factored into the equation; they pay through their taxes
for other middle-class parents to have their children educated
free often at chichi state schools. Second, they pay what we are
told are very high prices at independent schools. Third, it appears
that they are now being asked to contribute to funds for bursaries.
Q93 Chairman: I am delighted that
Sir Simon Jenkins has joined us. If I may quote him, he says it
is like saying that people who drive cars should not have to pay
for the buses.
Sir Simon Jenkins: Correct.
Q94 Chairman: I thought it was a
good argument.
Dr Seldon: Maybe Simon was on
a bus which is why he has arrived slightly late.
Sir Simon Jenkins: I have been
in Committee Room 18, where I was asked to go, where an excellent
discussion is taking place on social divisions.
Dr Seldon: We seem to be moving
towards some divisions here. The second point is about bursaries
where again I differ from the Charity Commission in the emphasis
it places on this. I do not see bursaries as a panacea. It has
the same effect as assisted places introduced by the Thatcher
Government. They were phased out in one of the first acts promoted
by the Blair Labour Government. They pluck out the brightest and
best—they might be the best academics, cellists, flautists
or sporting, dramatic or dancing stars—from state schools,
put them into independent schools which can then boast of having
these great people. That seems to be depriving state schools of
future leaders of orchestras, choirs, teams, academic societies,
school captains, monitors and so on, and the message given to
the state schools is that somehow they are not quite good enough
to deal with the very best in society. That is pretty dismissive
of the parents, children and teachers of those schools. I can
certainly see a role for bursaries. My current school Wellington
College has some bursaries, but I do not see them as the panacea
for this. I hope that the Charity Commission begins to realise
that far more emphasis should be placed upon partnerships. I have
argued consistently ever since the booklet Social Market Foundation
came out in 2001 and the IPPR booklet in 2002 for partnerships
and federations where there is genuine learning. The biggest wasted
asset in Britain today is the non-dialogue or insufficient. As
Dame Judith says, there is quite a lot of work which is under-recognised
and under-appreciated but I should like to see it go much further
still. My sector has a lot to learn from the state sector and
it has a lot to learn from us. The teachers, parents, governors
and, above all, the children would learn. That is where I see
far greater value. You can define "public benefit" too
narrowly. Wellington College was founded in 1859 as the national
memorial to the Duke of Wellington for orphans of soldiers killed
in battle. That was our original charitable purpose. Thank God
we do not have too many children orphaned by war so we must look
for broader definitions. Much that is happening is unsung, unnoticed
and under-appreciated.
Q95 Chairman: Your argument is an
interesting one. You said it was not a panacea to have a bursary
system, but you are also arguing that it does positive harm to
the education system as a whole to go down the bursary route.
If that is the case, I do not think we are a million miles away
from the reports that are produced regularly by the Sutton Trust
which tell us what great damage has been done by educational apartheid
in this country. It is the same kind of argument, is it not?
Dr Seldon: I would turn that on
its head and say: which of the two sectors in Britain is the more
successful? Is it the state sector that educates 93% of the country's
young or the sector that educates 7%? It is the 7% where the PISA
study and any number of other international studies show that
this sector is pre-eminent in the world. This is the world's most
successful sector of education. Why try to damage—it is
British to try to do so—that which is very successful for
the sake of unknown benefits for the 93%? The clear answer to
me is to make all schools independent and it can be done. Will
we seriously advocate nationalising every British industry? Why
not do that?
Q96 Chairman: We are talking about
charitable status.
Dr Seldon: But you asked me a
question the implication of which—
Q97 Chairman: We are not going into
the highways and byways. The focus of this discussion is the new
definition of "charitable entitlement" through the public
benefit test.
Dr Seldon: I am saying that bursaries
can have benefits for some children but I do not see it as the
panacea for this whole issue. There are far wider and better ways,
such as starting academies, which is the most exciting idea, to
bridge the gap. That is a new idea that has emerged in the past
10 years.
Q98 Chairman: I should like to bring
in Sir Simon who takes a different view. As I understand it—you
will explain it to us—you do not believe that schools should
have charitable status at all and so should not even be engaged
in the discussion about proving public benefit. Is that right?
Sir Simon Jenkins: I do not believe
it is very helpful to start arguing about whether an independent
school is better than a state school and whether it depends on
the intake, output or what. That is an educational discussion
and it is not something to which the Bill is directed. All I have
to say—I very rarely say it—is that I read the Bill
and the spin on it and I rather agree with it. I think that if
you are to call yourself a charity you must be a charity; it is
as simple as that. If you start to say that you do things which
save the state money somewhere else that is not a charity; it
is a kindness. My understanding of what is now being required
of schools is basically to prove that they are donating to society
something fairly specific beyond being simply a school. I do not
see what is wrong with that. A lot of the schools I know are quite
happy with that.
Q99 Chairman: Dame Judith told us
two things: first, all existing schools would happily pass this
test but, second, she disputed the test anyway with the Charity
Commission.
Dame Judith Mayhew Jonas: I just
put on the table that there is a debate going on among charity
lawyers as to whether the proposed regulations go beyond the scope
of the enabling Act and we will await the outcome of the final
regulations. We park that to one side. What we are doing is giving
advice to schools on that law but also saying to them that given
they are charities and they have a charitable ethos there is a
need to be part of the community and to contribute to the community
in which they operate, and most of our schools do.
Sir Simon Jenkins: I was governor
of two independent schools, admittedly some time ago. They are
very good schools of which I am proud. I cannot remember at a
governors' meeting a discussion of our charitable role. We were
desperate to move up the league table. Frankly, absolutely everything
we did was aimed at that particular objective frequently to beat
the local state school. That was perfectly reasonable within the
law as then drafted, but some of us did say we were jolly lucky
that we did not have to pay tax on all this. I am wildly enthusiastic
about independent anything, but it seemed to me that there was
an anomaly here. I thought that the Charity Commission was perfectly
within its rights to open up what was effectively a discussion
and to say it ought to look at this sector. Clearly, it was politically
electric but it should just ask schools what they did which was
charitable. A lot of schools are now doing some very charitable
things as a result which seems to me to be the end of this exercise.
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