Alexis Quinn is a single mother and former GB youth swimmer. Her daughter is autistic and struggled to cope at state primary school.
With help from her family and a scholarship, Alexis just manages to keep her at an independent school, where there is more support and her daughter is doing well.
She receives no assistance from the taxpayer: as a result, under the new Government’s plans, she will soon have to pay VAT on her school fees, which she cannot afford.
Ms Quinn – soon to be joined by military families and representatives of religious faiths – plans to challenge Labour’s plans under the European Convention on Human Rights (ECHR). Their blood is up and they have raised over £100,000 in legal crowdfunding online.
Some are suspicious of the ECHR and Sir Tony Blair’s Human Rights Act. They argue that this legislation has created a new profession of troublesome lawyers. Among these was Sir Keir Starmer. Ironically, the Prime Minister may yet suffer a famous defeat in the court where he plied his trade.
While the case of Ms Quinn and her allies is technically based on modern human rights law, it also draws on long-standing British tradition.
Education has been a charitable purpose in this country since the time of Elizabeth I and the Charitable Uses Act. It came to be seen as a right, and then compulsory, due to the influence of Victorian churchmen and non-conformists, commencing with Forster’s Education Act in 1870.
Far from the right to an education being some sort of novel, newfangled concept concocted around the 1990s kitchen tables of Islington, it is a historic legal right – and one worth fighting for.
In Britain, we have a private education system, running alongside many excellent – if underfunded – state schools. The purpose is threefold.
First, parental choice.
Parents usually know what is best for their child and when it comes to education, especially given it is compulsory, they are free to seek and pay for the most suitable style themselves without hindrance from the state. This is particularly the case when their child’s needs are critical, such as autism, disability, learning and speech difficulties or behavioural problems. These are questions of necessity.
Parents also have other long-established rights. If, for instance, you are Jewish or Muslim, an atheist, an Anglican or Catholic – or, in the 19th century, a non-conformist – you are entitled to have your children educated in that tradition.
This, too, is guaranteed by the ECHR. The 1952 Protocol to the Convention says governments must “respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions”. Under Article 14, freedoms in the Convention must be applied without discrimination.
This takes us to questions of culture. A nation is not just a place or a collection of residents or laws, it is a culture passed on from one generation to another, enabling both society and individuals to flourish. And the principal mechanism for conserving and developing our culture is education.
We can only speculate as to what unworthy motives may be behind Labour’s plans. Education Secretary Bridget Phillipson says that the aim is to raise £1.5bn in revenue in order to provide 6,500 more teachers in state schools. Neither she nor the Treasury appear to have offered any detail as to how this figure was arrived at. Their principal justification seems to be a recent report by the Institute for Fiscal Studies (IFS).
This particular IFS report contends that demand for private schools is “inelastic” and that only around 3-7pc of private school pupils would switch to the state sector. On this basis it calculates that VAT and the loss of charitable relief on business rates applied to the private school sector would raise up to £1.5bn in revenue. This estimate was itself partly based on an old IFS report from 2010, relying on, inter alia, a survey of the impact of rising fees in American Catholic girls schools in 2008.
The IFS estimate has three potential flaws.
The first is that it is an aggregated number, taking no account of either individual children’s needs nor of different demographics or regional circumstances. Whether parents in a given area are wealthy enough to soak up a 20pc increase in fees, mid-year, varies hugely. So does the availability of appropriate state school places. In some parts of the country there is spare capacity, in others there is not.
Second, even in the unlikely event that it is correct, it fails to take account of knock-on effects. Many small independent schools are already suffering from a lack of new joiners, put off by the threat of taxes, and cannot survive more than a small drop in pupil numbers. They may have to close.
Third, it does not sufficiently consider children with special needs and the additional costs of looking after them. The state sector is groaning under the weight of the duty to look after children with special needs. There is a shortage of special educational needs teachers, places and money.
A record 1.6m currently have special needs, of whom 576,000 – rising at 12pc a year – have Education Health and Care Plans (EHCPs). There is a big waiting list even for an assessment. There is also a waiting list for tribunal hearings.
Meanwhile, more than another 100,000 children with special needs but without special help from the state (such as Ms Quinn’s daughter) are educated at parents’ cost by private schools. Many of these schools are small.
Where are these children supposed to go if their parents can no longer afford the fees? What will the Government do if they apply or reapply for ECHPs? The costs to the state are potentially enormous.
It is very unlikely that the Government’s plan complies with the ECHR or that it will raise £1.5bn for the public purse. It might even cost money.
The IFS should withdraw its report and produce another, better one. The Nuffield Foundation, which paid for the report, and which exists to support social wellbeing, ought to be embarrassed at the misery about to be inflicted on many thousands of children with its financial assistance.
For Sir Keir Starmer, a defeat in a human rights case would also be a profound humiliation. The Government would do well to abandon its plans.
George Trefgarne is founder and chief executive of Boscobel and Partners
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