 Well, thank you very much. It's a great pleasure to be here even virtually. The paper that I'm presenting will be published in the LQR in 2021 and you can access a draft. September 2019 already feels like a lifetime away for all sorts of reasons, but at its conference taking place then Labour voted in favour of making a manifesto commitment to integrate all private schools into the state sector, to include the withdrawal of charitable status and all other subsidies, with the endowments investments of properties to be redistributed democratically and fairly across the country's educational institution. The leadership later distanced itself from the more extreme elements of the proposal and the manifesto was watered down, of course for political reasons, it's not very unlikely that any of this will happen. In any event, it's clear that it came from a concern about the role of private schools in entrenching inequality in society. So as a trust lawyer, I wanted to steer clear of the more political questions on the existence and effects of private schools, but what I really wanted to do was investigate the legal difficulties with implementing the motion on the assumption that it was desirable. I think the issue raises a lot of ambiguity and I'm going to be looking both at domestic charity law and the ECHR. There's not as much specific literature on this question as you might think, there's a short paper by Giacchanelli in the conveyancer in 1996, but I disagree with that on a number of points. I found considerable potential pitfalls, particularly if we want to remain party to the ECHR, but on the other hand the ECHR requirements are not as clear cut as they first appear. So looking first of all at the current status of private schools, I begin by asking what a private school actually is. The term has a lot of resonance and is used by the judiciary, but it doesn't appear in any UK statute. It's essentially synonymous with independent schools. These do at least have a statutory definition in the Education Act 1996. There are around two and a half thousand of these in the UK representing about six and a half percent of the total school population. So we can probably assume that labour meant independent schools, but this question isn't merely of academic interest. We'd need to establish if we want to implement the proposal, for example precisely which sort of activity was no longer to be charitable and yet leave other forms of charitable activity that are related intact. I then move on to look at the status of charitable private schools. This will be familiar to many, but essentially the advancement of education is a charitable purpose in the Charities Act 2011, but of course it's also necessary to demonstrate public benefit. 74 percent of schools represented by the Independent Schools Council held charitable status in 2019, with the rest presumably either unable to demonstrate public benefit or not attempting to do so. Public benefit was considered in detail in our the ISC and the Charity Commission in 2011, specifically the Commission's suggestion that such schools couldn't exclude the poor. I go into some depth in this in the paper, but the most important point for present purposes are probably that it felt it couldn't decide the political question of whether the ostensible public benefit of private schools was outweighed by disbenefits in terms of the sorts of factors such as inequality that were later cited by labour. It was also held by the Tribunal that it would be difficult to demonstrate that otherwise charitable purposes of providing education could be rendered non-charitable because of the wider consequences for society. Importantly, I think this shows the extent to which many private schools are inherently charitable by their nature, and although some of the Tribunal's analysis was contestable, I think it's unlikely that the judiciary would change their overall conclusion in the absence of legislation, so we need legislation to do this. I also looked at the advantages of charitable status and these are of course considerable. Labour or another government, if they were so minded, could conceivably remove some of the privileges without affecting the fundamental charitable status in order to affect some kind of redistribution of assets through society. Importantly, even non-charitable private schools benefit from education being of that exempt service. The removal of that exemption would potentially affect a redistribution, albeit that actually the costs could just be passed on to parents or others paying the fees. There is a precedent for the variation of rules applied even to particular types of charity, so for example ecclesiastical corporations are not treated as charities for some purposes under the Charities Act 2011, but I think there is a risk that the removal of some benefits could in substance deprive schools of their charitable status and might have some issues with relation to the EHR. I'm going to come back to the EHR, but first of all I wanted to look at the removal of charitable status and the impact of the redistribution for domestic law. So first of all, what do labour actually mean by the integration of private schools into the state sector? At least they want to remove charitable status and the redistribution of assets is clearly contemplated. But is private education to be made unlawful? That's not clear. If private education is to remain permissible, how can these schools operate without their assets? Are they to lose all of them? Are they to be made state schools through a process of nationalisation? Answers to these questions are not remotely clear in the original conference motion. So I begin the analysis by considering the removal of charitable status, which could, as I'll explain, give way naturally to redistribution of assets through the CPRA system, though it would have to be modified in order to achieve the objective. Now there is some precedent for the notion that a once charitable activity can be rendered non-charitable subsequently. The judiciary first regarded opposition to vivisection as charitable, but later decided that its benefits outweighed its detriment. Then go on to look at a comparison of the labour motion and the current system of CPRA. Now you'll all know that there is a long standing jurisdiction to redistribute the property of a charitable purpose that has failed from the law-french meaning as near as possible. And the notion of failure has, of course, expanded over time. Now it can come into operation for various reasons under section 62 of the 2011 Act. Most relevantly is the idea that the purpose has ceased as being useless or harmful to the community or for other reasons to be in law charitable. Now in this part I depart significantly from Jackinelli. He thinks that the termination of charitable status in the case of a private school would lead to a resulting trust or some other private trust because there's nothing in what's now section 62 to prevent the operation of resulting trust and a private school is not useless or harmful to the community. But I prefer Singh's argument that it's only where something was never charitable that the principles of private trust should apply. So I think this is potentially a case of subsequent failure in CPRA terms in relation to property that's already held by a school that is subsequently rendered non-charitable. There are some complications here relating to the multi-various types of structure that schools can have. But I think it seems unlikely that the judiciary would allow this to prevent the operation of CPRA. There's more detail on this point in the paper. There are also difficulties in relation to non-charitable schools. Again, there's more detail in the paper and I'd be interested to hear your thoughts. What about Jackinelli's argument that schools are not harmful for section 62 purposes? Labour's very point, of course, is that they are so harmful and all of this would potentially have to be reworded. There are precedents for that manipulation of what counts as charitable. For example, a registered sports club is deemed not to be charitable even if it's established for charitable purposes. But we need a lot of care in doing this. Another drafting point is that many independent schools or their trusts arguably advance other charitable purposes. For example, religion or relief of poverty. And we need to close any potential factor if this were going to be implemented. There's a fairly fundamental issue if the relevant property is to be redistributed across educational institutions. The current understanding of CPRA is that property would go to other charitable purposes. So if one purpose fails, the relevant property would go to another charitable purpose. It'd be fairly uncontroversial currently for property from a dissolved independent school to go to another charitable school. But if the whole point is that no independent school is to be charitable under Labour's proposal and they want to benefit state schools, that could cause significant problems. Again, more detail in the paper. There is a related problem if private schools are to be allowed to retain some of their property, notwithstanding the loss of status as charities. And that clearly happens as a matter of practice now where individual schools lose their charitable status for failure to show public benefit. But I think it may be more problematic where private education is to become non-charitable in principle. So I think we'd need a change in the nature of CPRA and or the state or private schools to make this work. Some state schools are currently explicitly charitable by statute. Others are explicitly not charitable by statute. So essentially, Labour would have to make all state schools charitable in order to allow them to receive property via CPRA. They'd have to limit the types of schools that are so to receive the property or change the fundamental nature of CPRA so that it didn't mandate the transfer of previously charitable assets to other charities or charitable purposes per se or of course redistribute the assets via a mechanism other than CPRA, which may be tantamered to compulsory acquisition by the state. And at the same time, they would have to keep intact the very aim of private education being non-charitable. It's potentially doable, but it's certainly not easy. In the final substantive section of the paper, I go on to look at the ECHR implication. And this is significant in light of Labour's firm commitment to remain a party to it. Not so much with the Tories, but there we are. In Article 1 of the First Protocol, we have protection of the right to peaceful enjoyment of possession for every natural or legal person. Deprivation has to be in the public interest and as provided for by law. But at the same time, Article 1 of the First Protocol doesn't impair in any way the right of a state to enforce such laws as it seems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions. I'm summarizing hugely here, but the issues include whether a charitable trust is a legal person, since it has no separate personality in domestic law, but national law isn't inclusive. Another issue is that the whole motivation of Labour is that redistribution would be very much in the public interest. Presumably, the mechanisms I outlined above would be provided in law and lesser proposals like the removal of tax privileges would clearly secure the payment of taxes. But the article is stronger than it first appears because of the proportionality analysis that the Court undertakes and because lawfulness requires predictability for seeability and precision and that's potentially difficult in the light of the long-standing nature of charitable status for some of these schools. As for proportionality and the need to avoid the individual and excessive burden on a particular school, again more detail in the paper. It could be argued that there are other ways of achieving equality in society and that the proposal excessively targets private school, but perhaps if they're all affected it may not be an individual burden and therefore may be proportionate. Another issue is the general expectation of compensation if the interference is to be proportionate. But the problem is that the target of the proposal is the very wealth of the schools and not just the particular assets. There's also an issue as to who's to receive the relevant compensation anyway. It's not clear which direction this would send us. There's a possibility that this would be regarded as a mere control of use, which the Court in the past in Strasbourg has used to sidestep the compensation issue. That might work if the property is essentially being forfeited or confiscated because the provision of private education is no longer lawful. So as you can see from this brief summary the implications of Article 1 are not at all clear. There are many twists and turns and inevitably I think we'd see much wrangling if there was ever any attempt to implement this proposal. I then go on to look at Article 2 of the first protocol which suggests that no person shall be denied the right to an education and the state shall respect the rights of parents to ensure such education and teaching in conformity with their religious and philosophical convictions. Again a breach looks unlikely at first glance but the issue is perhaps a little bit more nuanced than it first looks. Of course there's no intention in the motion to deny anyone an education and it's also difficult to argue that private education itself is a philosophical conviction but the European Court has emphasized that Article 2 protects pluralism in education. Commentators vary in their views on whether this protects the right to establish private schools per se but even if it doesn't the practical reality is that the state may struggle to provide the range of educational options in terms of religion and all that sort of thing as distinct from facilitating the provision of a range of educational options by allowing the operation of private schools. Now Lord's Panic and Lester in a legal opinion published and heavily relied on by Jack and Ellie argue that any change in the law which even indirectly forbids the continued existence of independent schools constitutes a breach of these HR but there are limitations in Article 2. There is no duty to set up or subsidize particular educational establishments and the right of access protected is only to educational institutions that exist at a given time. The European Court has said that the regulation of education by the state may vary in time and place according to the needs and resources of the community and of individuals. Overall the implications are again unclear to withdrawal of at least some fiscal privileges would be permissible while the explicit abolition of private schools would probably amount to a violation. The real difficulty of course is where the first of these effectively becomes tantamount to the second and we would need to tread carefully. So in conclusion the removal of charitable status and the redistribution of assets may be possible in respect of private schools but it would be fraught with legal difficulty. It would clearly require legislation and fundamental changes to the law of charity, the law of property and or the legal status of at least some existing non-private schools as well as private ones themselves. It may also violate the EHR but the implications are unclear. The limited removal of privileges would be more realistic but that would still require care. There's dangerous uncertainty I think both in the labour proposal but also in the EHR itself so I'll leave it there thank you very much for listening and I'm very keen to hear your thoughts. Thank you very much.