Yes, you and I disagree. As do you and the courts, thus far, at least.
I have also read some of the original (Divisional Court) judgement and reproduce some of the relevant parts below, in case of interest. Bolding is mine.
www.judiciary.uk/judgments/alr-and-others-v-chancellor-of-the-exchequer/
Para 62 :
On Lord Pannick’s case, what makes the measure challenged here objectionable is that it is a tax on the very service (education) to which A2P1 guarantees a right of access. This is a superficially attractive submission, but it does not withstand analysis. Why should a measure which results in a 20 per cent increase in fees (if the tax is fully passed on) be consistent in principle with A2P1 if it is a tax imposed on employers or occupiers of property, but impair the very essence of the right if and because it is a tax imposed on the provision of educational services? In both cases, the impact is the same: it makes the fees unaffordable for a proportion of parents currently sending their children to private schools. This puts them in the same position in which the great majority of parents already find themselves: their options are limited to those which the state makes available free of charge.
Para 83 of the original judgement:
In assessing the breadth of the margin of discretion to be accorded to Parliament, we begin by accepting that the right to education is foundational. In some circumstances (see e.g. Ponomaryov), this will constrain the margin of discretion. But the facts of Ponomaryov were very different. There, access to the state-funded educational system was being systematically denied to lawfully resident children because of their immigration status. Here, as noted above, the effect of the challenged measure is to place a proportion of parents currently sending their children to private schools into the same position in which the great majority of parents already find themselves. Whilst the measure may make certain schools uneconomic, it cannot be said that the imposition of a 20 per cent tax on private school fees (the same rate as is applied to most other services provided for consideration) is tantamount in practice to removing the right to establish a private school. The effects of the challenged measure do not, on their own, justify a particularly narrow margin of discretion.
Para 109:
The four objectives of the challenged measure were raising revenue, ensuring fairness, protecting those with acute needs and minimising the administrative burden and the potential for abuse. These were, in our judgment, both legitimate aims for the purpose of A2P1 and, in principle, sufficiently important to justify the limitation of the important right guaranteed by that provision. We accept that, if there had been no adequate basis for concluding that the proposal would raise net revenue, there would be no rational connection between the measure and its principal objective. In that case, the Government parties’ case on justification would fail at stage 2. However, it is important to note that a party seeking to justify an interference with Convention rights does not have to show that the measure being justified will achieve its objective. It is sufficient that there is a rational connection between the measure and its objective.
Para 219
As we see it, the fundamental difficulty with the claimants’ case is that the clear evidence they rely on (which is now materially agreed) shows not only how bad it might be for them if they had to transfer to the state sector, but also how bad it currently is for many of the 1.1 million children with SEN who are already being educated in that sector. The Government parties have quibbled on points of detail with some of the factual matters contained in the NAO report, but in substance they have acknowledged not only the existence but also the scale of the problem. They agree with the consensus view that the main thing required to remedy it is further funding on a very large scale.
Para 227
Having considered in detail, and rejected, the claimants’ criticisms of the way the Government modelled the effect of creating an exemption for pupils with SEN but no EHCP, it is important to note that the challenged provisions are primary legislation. The main justification was to raise revenue for public spending, including on state education. The exemption now contended for was squarely before Parliament, which was well-placed to consider whether its redistributive aims were justified and what the practical effects of the exemption might be. Even if “weighty reasons” had to be shown to justify the exemption, we consider that there were such reasons. The decision not to create the exemption contended for therefore fell within Parliament’s margin of discretion.