Labour’s private school tax raid ‘likely illegal’

[Zizzagaaaaaww]

Thought some may like to read this article

archive.ph/i1XD3

Sir Keir Starmer’s planned VAT raid on private schools is likely to breach human rights law, The Telegraph can reveal.
The Labour leader risks falling foul of European Court of Human Rights (ECHR) law <a class="break-all" href="https://archive.ph/o/i1XD3/www.telegraph.co.uk/money/tax/labour-private-school-tax-moronic-policy/" rel="nofollow" target="_blank">over his party’s flagship policy, one of Britain’s top constitutional and human rights lawyers has warned.
Lord Pannick, who has taken on some of the UK’s most high-profile court cases, backed legal advice warning that making private schools subject to VAT was likely to breach ECHR law.
He told The Telegraph: “It would be strongly arguable that for a new government to impose VAT on independent schools would breach the right to education.

“That is because all other educational services will remain exempt from VAT and the charging of VAT on independent schools alone is designed to impede private education, and will have that effect.”

The KC and crossbench peer said that the Labour policy risked breaching two articles in the ECHR which protect the right to education.
He referred to legal advice written in response to Labour policies as far back as the early 1980s, when the country’s most senior lawyers warned that plans to end tax exemptions for private schools or abolish the institutions altogether would likely breach international human rights law to which Britain is signed up.
Previous leaders of the party have floated the idea of taxing private schools as part of plans to integrate them into the state sector. Under former party leader Michael Foot, the Labour manifesto of 1983 pledged to “charge VAT on the fees paid to [private] schools”.
The policy to abolish the schools was eventually shot down by senior lawyers, who argued it could be at odds with the ECHR and spoke specifically about the risk of imposing VAT.
While Sir Keir has ruled out abolishing private schools, he plans to force the institutions to pay business rates and 20pc VAT on tuition fees.
In an unearthed legal opinion from 1987, seen by The Telegraph, the late Lord Lester and Lord Pannick, prominent human rights lawyers, concluded a government “could not lawfully prohibit fee-paying, independent education or remove the benefits of charitable status or impose VAT in respect of such education” while a member of the court.
A foreword to the opinion written in 1991 by Lord Scarman, who served as a Law Lord in the precursor to the Supreme Court, said it would “encourage a challenge which could be mounted by taking the argument to the [ECHR]… if ever a government should seek to abolish or discriminate against [private schools]”.
The opinion was jointly written by Lord Lester and Lord Pannick as advice for the Independent Schools Council (ISC) and later published in its journal. Lord Pannick confirmed his belief that the argument still stands today.

Yes it is. This is an interesting clip of Reeves as well. They’re going after private schools first. It will be state selective and grammars next.

m.youtube.com/watch?v=OW21Tu38Txo

100% and then the "get rid of private schools" brigade will be up in arms

In fact the reverse was true; it was the left wing unions who didn’t want their staff to return

It’s obviously a pure spite policy (and an incredibly cruel one) to throw some red meat to the more left wing members of the party and easily led angry voters. I very much doubt there was ever a serious intention to implement it as it’s financially illiterate and can only add to UKs current brain drain problems. Saying that, I would imagine simply announcing the policy on the manifesto has already done some serious damage to the sector, caused some long sleepless nights for lots of parents and teachers and caused people to rethink raising a family in the U.K. where children are targeted like this.

The telegraph were one of the only papers that regularly gave a voice to the anti-lockdown argument, Whatever you think of them, a lot of their journalists spoke out against school closures.

Human rights arguments against tax policies can be successful though it’s quite rare. In part the human rights issue is that the policy is intended to force parents into the state sector, taking away the choice over how to educate their child which many parents would otherwise have. And for a human rights case you’d find children with special needs or who had been totally failed by the state sector who are now at a private school which faces closure due to the impact of the imposition of VAT and make the argument that the VAT change essentially denied these children any form of appropriate education (because the state sector demonstrably can’t provide this). Or find a family with a strong religious faith or similar who don’t feel that the state sector would meet their needs etc.

Would you have to show for a human rights case that the school is actually closing because of the policy?

Would it not be enough that children- who faced barriers to accessing appropriate educational support or suitable class size, or an appropriate cultural or religious community, in state schools- can no longer access education via a more suitable private school, because a new tax has put that alternative out of reach? But without increasing the investment into the state sector that would allow for a like-for-like substitution of schools? That latter point isn’t a great argument because changing schools can have a lot of disruption for the child.

But that’s out of reach for most people because of the fees. Or because of private schools increasing fees.

And anyway, there is no right to education in a specific school of your choice. The state is only responsible for providing access to an education.

Just saw this and thought it would be useful to help explain to people who claim hardly anyone will move from private to state that this policy is already having real-life consequences on state education- and that's before a Labour government has even been elected.

Certainly in my LA, the SEND team is already completely swamped. My son has had a statement/EHCP for 14 years. He had his most recent annual review last November. The LA still hasn’t written even the first draft of his updated EHCP and he has already finished school/college for the year.

I simply cannot imagine the impact of hundreds more requests for EHCNAs in our county on a council department which isn’t even capable of meeting the needs of those already in the system. You can say that many of these students won’t be eligible for an EHCNA - maybe they will or maybe they won’t. But their parents have every right to apply and to get as far in the process as they can.

Wouldn’t it be lovely if Labour had pledged to support SEND pupils with the funds raised from private school VAT on fees. But they haven’t.

I don't think the policy (which I am broadly against) is intended to force people in to using state schools. Their choice will not be taken away. It's just that all families have a pot they can dip in to for spending and some people will find the increase in fees takes them beyond their own pot. Many people will find the money and keep going with fees. It's no different to the decision to go private 5 years ago - some had enough in their pot, others didn't.

Parents will obviously move heaven and earth to not disrupts their child’s education, so I think the 5-10% figure quoted of pupils moving to state school sounds broadly right. However the real impact will be in parents choosing not to send pupils to private school to begin with who previously would have, this will cause the smaller schools to close and remove the local option choice whilst also forcing parents to find state school places when their school closes . This isnt an unintended consequence of the policy, the aim is to price middle class parents out of private education.

@Sarahsure So the aim is to increase inequality by ensuring that only the very rich can go to private school? So much for social mobility.

This is the concern I have. That the unintended consequences occur. If schools become unviable. It then doesn't really matter if some parents can afford the VAT increase, if other parents can't and the school becomes impossible to keep afloat.

Maybe the unintended consequences are of this are in fact "intended" consequences, due to the ideology .. only time will tell.

But where do you draw the 'very rich' line. For some people that already existed 5 years ago when they couldn't send their children to private school despite being close to being able to do so.
All that is happening is that the 'very rich' line is changing a bit. And, understandably, those who now find themselves on the other side of the line, are upset. But most people will have felt for some years that only the very rich can go to private school. I am guessing you, like most of the posters who are spending HOURS on these VAT threads, are now finding yourselves on the other side of the line. Perhaps less time on here and more on work would find some people on the side of the line that they aspire to?

Not sure what you mean by 'other side of the line'. We are fortunate to be able to afford the VAT which I would be happy to pay if I felt it was a really good policy. But it isn't. It's going to increase inequality in all sorts of ways. State schools aren't going to radically reform because of this, SEN children in private schools will be disadvantaged and it's already causing disruption in both sectors (see article I posted above).

I'm not angry at this policy because I'm a supposed rich person pissed off at having to pay a little bit more. I'm angry because it makes no sense; the Labour politicians struggle to articulate what's good about it other than 'all children deserve a good education'. No shit, Sherlock. And I'm sick of my tax money being wasted by successive incompetent governments.

I am guessing that you, like lots of posters defending this policy, don’t really want to admit that that it’s about hurting children of those people you are jealous of even if it quite obviously makes your children worse off. It’s very sad that people continue to fall for these ridiculous populist ideas.

@TeenagersAngst
The line you created in your post. The VERY RICH line. What do you mean by it? To most of the population the people talking about whether to take their children out of fee paying schools are already the other side of your VERY RICH line. What income turns someone in to your VERY RICH?
I am very glad that you are able to keep your children at their schools, that is what I hope for all children impacted and why I am broadly against the policy.
When I was at private school we were taught about resilience in the face of adversity but on here at the moment all I hear is a lot of moaning from people who probably can find it in themselves to find 5-10k more a year if they really aspire to what they consider the best education for their children.
We now know from the Rugby School leak that parents are being told to fake concern for the state schools being affected, and we know that there are what's app groups to whip up others to falsely claim they want state school places. Such low tactics to pretend to care when for years the Tories have been slashing budgets and none of the posters I see pretending to care on here now were posting on here then. And as for wasting LA time wanting state schools places - that is the lowest of the low from people who really should know how to behave better.

@Oakandashsplash by very rich I mean Eton and Harrow. The sort of schools that people think of when they think of private schools. They will certainly not be affected by this change.

I'm sure there is plenty of moaning from people who can afford an extra £5-10k per year but that's not the majority of what I'm seeing on Mumsnet. I'm seeing a lot of genuine concern from parents who can't afford it or who have SEN children.

But regardless, why shouldn't I be able to moan when this is essentially an unfair policy? There are people richer than me who are either fortunate to live near an outstanding state school, have moved house to live near an outstanding state school (something no politician seems to want to address) or tutored their child to ensure entrance into a grammar school. All of which perpetuate inequality in the state system. Why isn't that under scrutiny as part of equalising educational opportunity? And why shouldn't those 'rich people' shoulder some of the burden as well?

@TeenagersAngst
We are in agreement that one of the biggest inequalities in education is in state provision. I have worked in both sectors and when I have been in state sector the difference between a leafy comp and an inner city one in a deprived area can be stark - although I have to say I have seen incredible teaching in some of the very challenged state schools and also some dire SEN provision in some private schools which have been flooded with struggling children especially since COVID disruption.
I just think people need to be very careful about drawing lines and saying 'private school will only be for the very rich' when they themselves are the very rich. The average wage in this country is 30K, so most people who are even considering educating one child privately, even if they might struggle with VAT increases, are very rich even if they aren't at Eton and Harrow. It just doesn't come across well.
I don't support putting VAT on schools fees, I personally thought the charitable status / business rates was a better idea if there have to be taxation, and the continuing development of contextual fees for challenged state schools (not the leafy or selective ones!)
I also wish we could see some proper discussion of all the parties educational policies in media rather than endless VAT stories.

Contextual offers not fees!

@TeenagersAngst the reputation of those two schools does not mean they are any more costly or have fewer on scholarship or bursary. My stepson went Charterhouse which was more expensive than Eton at the time.
I have pointed out this 'illegality' on many threads about VAT on education. It's nothing new.

You really cannot generalise like that. If a private school is named in an EHCP, the LA pays the fees, which is obviously far from meaningless. If the evidence shows that the child needs support that is not covered in the fees, the LA must pay for that.

Many will be delighted, given falling state school rolls in many areas.

It's utterly irrelevant if the amount ultimately realised by VAT on one child who should be exempt anyway is less than the cost of that child getting the EHCP his parents should probably have applied for some time ago. What is relevant is the overall tax take, which clearly will outweigh any temporary cost in dealing with new applications.

That's the point, the tax intake won't exceed the temporary cost. Year on year the tax intake will go down. That's what happens when you introduce a tax that will elicit behaviour change.