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.

But this is true of human rights in general. Not everyone has a “family life”. That doesn’t mean the state can take away the family life of those who do.

The law says “No person shall be denied a right to an education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching is in conformity with their own religious and philosophical convictions.”

There is basically a right of non-interference by the state here. If a parent has philosophical/ religious objections to the education provided by the state or in favour of private school that right is arguably breached by a policy intended to damage the independent sector (which this blatantly is given that it will raise little money and replaces the policy of removing charitable status etc).

Clearly Labour have accepted that actually abolishing private schools would breach human rights law. It’s questionable whether imposing VAT falls constitutes a human rights breach in the same way but you could make a reasonable case for it, particularly if the impact is the independent sector being unviable in some areas.

I wonder whether this will prove to be key to an ECHR human rights legal challenge?

The article posted early in the thread explained that the 'right to education' law very deliberately isn't a positive right: it isn't intended to create an obligation for the State to provide the best education possible for a child.

Instead it's a negative right: that the State is not permitted to prevent parents from educating children according to the parents' own beliefs and philosophy. It's a law which recognises the power of education, and puts forward the principle that the State is not permitted to override parents and use education for social engineering.

Given the history with the Labour Party voting to abolish private schools - driven by Rayner and backed by Reeves, who are still driving current Labour party direction - I think it could definitely be argued that this is the next generation of the same party policy goals. Which are very much about controlling Education for the purposes of social engineering.

I think that if the policy ends up not raising any significant revenue as we expect (if parents choose private school for 10% fewer children over time then it raise £0 net revenue, which we'll see fairly quickly at the entry points of YR, Y7, Y12) then it will be very hard for Labour to argue that the policy is anything other than an ideological attempt to remove plurality of education, which directly contravenes the intention of that law.

Of course, a UK government can break whatever European laws it likes. Whether that's a law intended to protect a country's future by prohibiting tax on education, or whether it's a law intended to protect individual freedom of belief.

But do you really think that's the right way for us to go?

Ah, @Circe7 said it much more clearly than me!

The human right is about non-interference, and the State not taking these things away

No one would argue that one person's right to non-interference in their family life is meaningless just because not everyone is able to have a family.

I don't ever respond to messages - mainly because (rightly so) the comments are based on feelings, emotion, personal preference or bias - as opposed to fact. I thought your comment was worthy of comment because it didn't fit in any of those. I am a lawyer. It is factually correct that the introduction of VAT on school fees will breach Articles 1 and 14 of the European Court of Human Rights. Ironically, Keir Starmer is a supporter of the ECHR. The advice that Labour has had since the 1970s is that it will be unlawful to introduce VAT on school fees because this will breach Articles 1 and 14. Keir Starmer is also a lawyer - so he will know that the unlawfulness of the VAT imposition on school fees is true. So why will Labour do it? Well (and apologies for getting technical here - but I am a lawyer .....). Well, the ECHR is NOT an EU institution (despite what all the inept politicians tell you). The ECHR sits as an institutional court OUTSIDE of the EU. The ECHR was created by council members (with the UK leading charge as the first signatory as a council member). As a council member, the UK is subject to complying with the ECHR. If the UK was in the EU, it would be automatically illegal to charge VAT on school fees (that is why no country charges VAT on education). In addition, the EU automatically applies rulings of the ECHR into country law. Therefore, this Labour policy would NEVER be legal. The difference today is that we are not part of the EU, so ECHR rulings do not directly apply in the UK. However, if the UK government was taken to court (i.e., concerning the breaches of Articles 1 and 14 of the ECHR) then the ECHR would (as the legal advice has stated for decades states) very likely determine that the UK government is acting illegally. Unfortunately, the difference now that we have left the EU is that those judgments are not directly enforceable by the UK government. The UK government can effectively choose to ignore the ruling. That would mean that Keir Starmer's government is acting unlawfully - but there is no way that the ECHR can enforce the judgment - so the UK can get away with it. That doesn't mean that the UK isn't breaking the law - it absolutely would be - but the government can just ignore it.

Again, I am going to ignore the feelings, emotions, personal preferences or biases commentary on these posts and highlight the actual effect of ignoring any ruling of the ECHR. If Keir Starmer's government chooses to ignore the ruling (ironically as a PM and qualified lawyer) and because the VAT on school fees applies to discrimination in only one area of education (as opposed to all - e.g., nurseries, higher education, university education, tech colleges - all of which benefit from the EXACT same VAT exemption as private schools) - the question remains, what will stop the UK government from continuing to breach ECHR laws in applying VAT across all of those other educational categories because it needs to raise tax from somewhere ......).

Ultimately, it favours every person in the UK to have a government that follows the laws. VAT on university fees (which benefits from the exact same exemption as private schools) would raise even more tax than VAT on private school fees. But maybe the UK government will hold that card for when it needs more cash to fund its policies in the future ....

Personally, because I believe in the rule of law, the UK government should be taken to court, because you can't have governments ignoring legal principles. Even if the judgments are ignored by Keir Starmer's government, any law-breaking government doesn't last long in politics (remember Tories and Partygate ....)

Thank you and I believe that this will ultimately be decided in court

And if they did tax - what are the consequences?

1. School fees rise which the rich can afford to pay. Just less money for skiing or whatever.
2. Poorer parents can’t pay. What do they do?
3. Move house - raising house prices around good schools (no social cohesion).
4. Increase in home schooling. If the state school was a disaster you would not just go back?
5. Increase in “hidden” schools.
6. Considerable confusion with tutoring schools, after school “schools”, Saturday schools, Language schools Music schools, etc. And private university or nursery?
7. Details like private school dinners having VAT applied and not state school dinners? Charitable donations - private schools get their money from school fees - having VAT applied? Many private schools provide for state schools. Minefield.

The irony of private school parents complaining that VAT on private schools means only the very rich will be able to afford them just makes me laugh.

@ThursdayTomorrow which is exactly what Labour wants you to do. Because while you're laughing at 'rich toffs' you're not questioning them on the viability of their plans for improving state education. Which amount to very little.

The irony of private school parents complaining that VAT on private schools means only the very rich will be able to afford them just makes me laugh.
I was making the point that there will be a raft a consequences. Simply thinking children will go to their local state school instead of paying fees seems a naive thought.

The irony of supporters of this policy who laugh about damaging my DD's education and punishing me with an extra tax... when it will also damage their own children's state education, and reduce their own prosperity by weakening our economy doesn't make me laugh.

It makes me sad and frustrated. My own family is my main concern, but I also don't want things to be worse for other people. I guess that's a difference between us.

It's the very worst of left wing policy-making: make everyone worse off, just so long as it's equally bad for everyone.

What I find ironic is the somewhat hollow collective concern for state schools from private school parents, who decided not to be part of the state sector. It's so obvious that it suits the collective agenda to shine a torch on its problems. Where are all the concerned posts about state sector challenges and shortcomings from private school parents before VAT on school fees?

Vast numbers of such posts all over mumsnet over the years - especially from those with SEN children who have been failed by the state sector.

If you're driving like a nutter somewhere you can't hit anyone, then I'll probably pass some comment, but largely leave you to it.

If you're driving like a nutter on a public road which I and my family use too, then it becomes my problem.

Labour are proposing a stupid policy which will damage both my DD's education and also state education. It's become my problem.

Similarly to you driving like a nutter, I think that you probably don't care about the impact on me. However if I can help you to see that you're also putting your own life at risk with your crazy driving - harming your own child's education - then you might take more care, which will benefit both of us.

We use state and I didn’t think this was a good way to go as I think it’s damaging rather than beneficial

Plenty of private school parentshave voted Labour for years because they care about public services.

One of the things I find ridiculous about this whole debate is the associated assumption that people are only able to care about things they personally use - at least when it comes to education. I imagine that most state schools parents on MN have never been in prison. Or used a food bank. Or gone to a women's refuge. Or been a refugee. Or even lived in social housing. Yet we find it totally plausible that they might care about these things. But the idea that a parent who sends their child to a private school might nevertheless care about state education is apparently ridiculous.

Maybe best just to write in plain English and drop the bewildering nutter analogies?

What is crystal clear is that your problem is solely the consequences for your own daughter. Any other anticipated collateral damage is just useful ammunition for your cause. That's saying it how it really is and it holds more credibility.

I don’t think you can say this, the pp does sound concerned with overall impact

I don't think you can tell me what I can and cannot say. It's up to me to decide whether I think the collective concern is genuine or faux.

Just a way to say I don’t think you are correct about the pp.

Sorry you find analogies hard to understand.

You seem to also find it hard to understand that people can care about more than one thing.

I care about my own family most. Anyone who says they don't - including you - is lying.

I also care about state education. Many of my family and friends children are educated in state, and it's pretty critical to the future of our country. It's not enough my concern for me to have campaigned for it in the past. Just thought privately that it should be better funded.

Something that directly affects my DD is enough my direct concern that I'll talk about it on mumsnet. That's a slightly higher level of campaigning than just thinking something privately, though not much.

I don't find analogies hard to understand at all. It's just that yours are extremely long winded and don't really get your point over - like most of your rambling posts. Of course be concerned for your own DD, just don't expect everyone else to be.

No, I don't expect you to care about other people's children at all.

That's why I've pointed out how it will also harm your own child. Since that's something you will care about.

A tad presumptious (as usual). You don't even know if I have children or not or if so what age they are or if they are in independent or state education. So busy transmitting that there is no awareness of anyone around?

Well you haven't actually given any useful insight, have you? Just criticised other people's purity of thought.

Sorry if I read your post wrong. Of course you can comment like that.