To ask if anyone is clued up on the challenge this week to VAT on school fees?

[feesss]

we went to look round a school this morning and we obviously asked about VAT and the lady showing us round said there has been a challenge this week so it may not happen? Is anyone aware of this? I can’t see much online about it?

It’s an odd situation as the policy is designed to ‘harm children’ as a means of spiting their parents and driving more children into the state system. It will be deemed as a success by its supporters if schools close down, this isn’t normal for an ECHR signatory Government. It’s never happened before so it’s all a bit odd (and a bit concerning). I’m sure there will be legal avenues for compensation, but I think this will be seen as an acceptable cost to the policy supporters in getting schools closed down.

The change proposed involves amending primary legislation to remove the VAT exemption. That needs an Act of Parliament. Currently the proposal is in clauses 47-49 of the Finance Bill - the budget.

If Parliament passes the legislation, but the courts subsequently decide that the policy is not compatible with the right to education then they can issue a "declaration of incompatibility" under s.4 HRA. That declaration does not invalidate the legislation itself though (s.4(6)) - ie it does not restore the VAT exemption. The provision removing the exemption remains good law until parliament amends it (which can happen rapidly via a fast-track procedure - s.10).

In other words the government would not have broken the law (certainly not domestic UK law) and anyone left out of pocket doesn't have any other remedy I'm afraid.

(There's no right under the HRA to any sort of interim/temporary declaration, and it wouldn't serve any purpose. The courts have no power to make injunctions or orders against an Act of Parliament - in our constitution Acts trump everything else.)

A Government has broken the law and harmed some kids. Will there be compensation in the future?

A government can just legislate not to compensate. Like the Tories did when workfare was found to be unlawful.

I am not sure that is going to be correct. The Government know full well there are thousands of children with mental health struggles in private schools. If some eg attempt suicide as a direct result of this policy, compensation will be due eventually.

Once again, only if the government don't pass a law making it not so.

The bottom line is you cannot force an elected parliament to do anything it choses - by dint of voting - not to. Now the principle of pissing all over international treaty obligations (admittedly in a limited and specific way) has been accepted by the political establishment, then there really is nothing stopping any government of any stripe doing as they please beyond the fear of armed insurrection. And even then that would have to be a pretty well organised insurrection. Which seems unlikely in the present climate.

@SerendipityJane - if you think Labour MPs despite their majority will get away with breaching the human rights act openly vis a vis some kids with SEND in private schools, then I think you have not considered the reputational and PR aspect one bit. They are meant to be championing human rights. They cannot get away with a breach if upheld by the courts. They will be utterly shamed in the press for years and they are already unpopular and the economy is already tanking since they got in. So that is unlikely to happen if the courts state it is a breach. Plus the Tories have already stated openly they will reverse the VAT.

Whilst what you say is correct, it still doesn't provide a gotcha moment.

If prisoners were able to now vote, I would probably be a little more in awe of the ECHR and it's rulings.

@SerendipityJane - really you are comparing prisoners with children with SEND and not considering public opinion implications?
Not least, the lies that state schools won’t be affected and the likely fall out with regards to public opinion in that regard, on top of all of the former.

It is almost like this lot have had zero input on social media and public opinion implications of some of their policies which are unlikely to even raise proper taxes. It is the same with the NI raises for social care and nurseries. Zero foresight on their part as to what is actually workable, in practice. One fears they want to deliberately stoke petty culture wars rather than get on with actual proper governance of the country. It is almost like work avoidance.

really you are comparing prisoners with children with SEND and not considering public opinion implications?

Pretty much. It's the legal side I'm looking at. However if we are talking public opinion, it was that which underpinned the decision to ignore the ECHR on prisoners rights. As yet I remain sceptical that public opinion is actually quite as stoked up over this issue as some believe.

really you are comparing prisoners with children with SEND and not considering public opinion implications?

If you believe in the principles of human rights and the rule of law (I do, and I thought you did, that seemed to be the point of your post!) then the same logic applies in both cases, and public opinion has nothing to do with it; it's about the law.

Human rights are not just for popular people or the majority. Part of their very point is that they are anti-majoritarian and they stop majorities bullying minorities. Everyone is entitled to vote, the majority cannot take your vote away, that's clearly a very dangerous path to start down. Everyone is entitled to plurality of education free from state interference, except as a proportionate means of achieving a legitimate aim.

And the rule of law means that everyone (including government) must respect court decisions.

“If you believe in the principles of human rights and the rule of law (I do, and I thought you did, that seemed to be the point of your post!) then the same logic applies in both cases, and public opinion has nothing to do with it; it's about the law.”

Yes, of course I believe in human rights. However, we were discussing the consequences of a breach of human rights. And the ensuing implications on public opinion and what is directly enforceable, practically speaking and what the remedies may be. My point was simply that breaching the human rights of vulnerable children is entirely politically unpalatable and not something politicians can recover from, for many many years. Hence, even if technically there are not enforceable remedies, then practically speaking no politician worth their salt is going to be breaching the human rights of children with SEND, if the highest courts in this country deem that to be the case.

I agree, I think it just falls into the tax someone else pays category for most people. But people will find out more about the policy as time goes on and they’ll realise how spiteful and self destructive it is. I also suspect support for the independent education sector will only increase when Labour unleash their indoctrination education plans for state schools and people look for a way out.

Why?Parents of suicidal kids who attend state schools don’t get compensation. Why on earth are the children of the wealthy more worthy of compensation?

Sorry, I misunderstood your point.

I agree - I don't think there's any doubt that the government will comply with a declaration of incompatibility if one of issued.

its assuming the Government breached their human rights in forcing them out of a school that was suited to their needs.

Ridiculous. So all the kids that could never access a private school that meets their needs don’t matter.

Private school is a luxury. It’s not water or heating.

Neither is cake but it is not taxed. Historically it was considered a staple but I don’t think that argument really stands any more.

I am being facetious, of course, but arguing that private school is a luxury is probably not enough.

The government could make a lot of money from taxing cake and may benefit the health of the nation (using the logic of raising vat on cigarettes and alcohol).

The ECHR breach only applies if the Government is hindering education choice.

Education is considered a necessity by many.

The conclusion is there is a risk the Government will lose in court on human rights ground and will then have to retract the policy, with great embarrassment. The question is how material this risk is and what the Government’s legal advice on the matter says. If it states there is a likely risk this will happen, they should not be going ahead with this policy! For obvious reasons.

They’re not
unless private schools can be accused of the same by putting their prices too high. 94% of the be population can’t afford it. If you can’t afford it you can’t afford it.VAT is nothing compared to the fees themselves . Many young people can’t go to uni because of gov policy hindering their choice….

There is free education for everybody, private education isn’t a necessity.

Talk about grasping at straws-ludicrous.

No, it is not grasping at straws. Whatever legal advice the Government are given will eventually be leaked.