Phasing out private schools – (how) could you actually do it?

Jonathan Simons
Jul 9 · 15 min read

There’s a nascent campaign floating around the various Labour left circles at the moment around Phasing Out Public Schools (POPS). Indeed I covered the launch in a sketch piece the other week, which some people seem to have taken offence at and claimed I was under some duty to write a factual news report about it. The group aims to put pressure on Labour to go further than their current proposals to put VAT on fees. The Guardian is also today reporting that the new group – snappily titled @AbolishEton on Twitter – will put a motion to this effect at Labour conference.

I have been wondering about it idly since that launch event as a thought experiment. Irrespective as to whether you think it’s a good idea, could it actually be done, legally and realistically within the bounds of how policy is made? Let’s sketch out some options. Again, to stress, I’m not commenting on whether any of them are sensible policy wise or politically. Just a wonky thought experiment.

Two points of framing for what follows:

Importantly, the presumed goal that I’m testing ideas against is to “phase out” private schools – that is close them down / bring them into the state sector. There are things that can be done which might reduce the proportion of the population going to them, but I’m taking it from the group’s rhetoric that this is seen as insufficient.

Secondly, a likely counterpoint to many of the barriers and issues raised below is “so be it / who cares”. And indeed, that’s a judgement that a Labour opposition and government could make. My point is merely that *these trade offs can’t be ignored* – and that within government, even a Corbyn Labour government, other departments and Secretaries of State will have views and priorities and things that will need to be squared off. The test as to whether such a policy goal is really achievable is on how hard these trade offs are to manage.

In escalating order of things that a government could, hypothetically, do then:

Put financial costs on going to private schools

This is more or less Labour’s position. They want to charge VAT on fees which would add somewhere between 12%-20% on fees and under Labour’s calculations raise about £1bn. Abolition of business rates relief would contribute about a further £100m a year.

Other things that could be done here include requiring private schools to pay back the training costs for any teacher who trained in the state sector within the last x years, increasing employer pension contributions from the independent sector (or banning them from being able to access TPS entirely) and barring the MoD and FCO from funding places at such schools for senior soldiers and diplomats respectively. This latter costs about £250m a year.

Even this smallest step is policy wise not the simplest thing to do. To apply VAT to a group of organisations or deny business rates relief you have to rule that they are not a charity. And the government doesn’t get to do that – the independent Charity Commission does (and indeed ruled recently quite conclusively that independent schools were charities that were providing a public benefit and that, crucially, it was up to schools’ trustees, not the government, to decide what that public benefit was)

Nevertheless, the government has some leeway here and could conceivably apply much different and stronger guidance to the Charity Commission to ask them to reconsider. Plus I’m pretty sure that primary legislation could be designed to overrule this if a government were inclined – but that would not be without risk of “de-charity-fying” other organisations by mistake.

Making the other changes that aren’t dependent on charity law changes are straightforward enough, though pension law has all manner of issues and has the same risks as charity law change – that accidentally you deny pension access to “non state” actors that you don’t mean to. For example, drafting a law around charitable status or pension changes that affects independent mainstream schools but doesn’t penalise small, non-maintained special schools or AP providers working under contract to LAs and supporting some of the most vulnerable pupils in the system would be a challenge. As a fully intended consequence of such changes above, you also have to accept that as a government, your senior military and diplomatic staff ranks will suddenly shrink as a lot of people aged between 35–50 suddenly quit because they can’t serve abroad anymore without some continuity of education for their children across their parents’ different postings, many of which are impractical to take families to.

If you did all these, it’s likely that some smaller prep schools would close. Fewer people overall would probably go to the independent sector. But it would not be a wholesale abolition / reintegration / phasing out. Indeed, Angela Rayner is on record as saying she doesn’t think that’s the outcome from her plans.

Place requirements as to what independent schools can and can’t do

Moving up the scale to more significant contraints would be to place rules on these schools and their graduating pupils. The easiest way to do this is to do what the not-much-missed Schools That Work For Everyone White Paper and various predecessors all did, which is to simply demand that private schools do things. This could for example require them to do much more sharing of facilities and staff. It could require them to take a certain proportion of pupils paid for by the state but with the state only paying state level “fees” for them, as Professor Francis Green has (I believe) argued for. (Interestingly, this is a leftish way of making what is actually a very Tory proposal which is to cover the costs for a few lucky kids to go to private school on the state’s tab….) At the more radical end, this is where you would categorise the various proposals around not allowing independent schools to send their students to elite universities above the percentage share of the cohort that they educate, or place similar limits on the number of their graduates who go into elite jobs – both of which have been mooted as suggestions in the recent past.

The easiest way of doing all this is to threaten schools that if they don’t comply then they lose their charitable status. The difficulty for Labour here is that at this point, I presume that such a change to strip schools of their charitable status is already underway. And if not, I could fully expect the vast majority of schools to voluntarily give it up anyway, on a calculation that the financial costs of doing so would be less than the costs of complying with various duties. Nevertheless, assuming that again we can draft a law that catches all, but only, fee-charging institutions that Labour want to catch, it’s possible to not do this by threatening charitable status or simply demanding compliance but instead making new legal conditions on independent schools in the same way that government regulates other industries that are in the private sector. That is, after all, what laws do.

Some of the harder edged proposals in this space are extremely tricky to think through how you’d do it. Let’s take a proposal that only 7% of places at Oxbridge, say, or maybe at the whole Russell Group, can be allocated to private school children. (A side note here: proposals like this all mention 7% as the figure they’d cap at, which is the share of pupils in the independent sector overall; however the proportion educated in ISC registered schools at sixth form is just over 16% of the school educated cohort at this age).

First of all, how far back do you go? If someone went private until 16 and then switched to a sixth form college / state sixth form and applied to a university, would s/he be caught by this cap? Similarly, if someone went to a prep school until they were 7, and then moved to the state sector through to A Levels, would they be caught? Defining your cohort properly is essential here, and not as easy as it sounds. Where, after all, do you contend that the independent sector has added its value (and should therefore be constrained)?

Secondly, for better or worse the independent sector achieves around 30% of all top grades at A-Level. There’s obviously room for some switching of places between independent and state educated pupils – the fact that Oxbridge has increased its state entrance rates in recent years with no lowering of grade boundaries shows this – but at scale, such a cap on independent school entry would begin to cause issues particularly at certain institutions – the higher tariff ones - and in certain subjects. Medicine is the obvious one. Somewhere between a quarter and a third of all entrants to study medicine at university come from the independent sector – and that’s less about privilege than it is about unequal access to those studying higher level sciences at A Level, and certainly those getting As and A*s required for medicine entry. If you introduced a hard cap across the Russell Group, without some form of amelioration, undergraduate medicine would collapse almost overnight. Ditto veterinary science. Probably ditto law (fewer Magic Circle solicitors sure, but also fewer barristers able to work for the Crown Prosecution Service). An immediate workforce shortage for the NHS is, I’m pretty sure, not what a Labour government would want to see, but removing most A Level science students from eligibility to medicine courses would do it.

Thirdly, it’s not remotely clear that the universities would go along with it (by which I mean, they’d resist it entirely). Most universities exist to educate students for the purposes of education – they take them from wherever they come and educate them in the subjects they choose to study. Most universities (at the governing level) are not interested in actions like this: their argument is that if governments want them to take fewer independently educated students, then they should improve the A Level results of the state students. Government levers over universities to force them to comply against their will are a lot less than they are over schools, although a Labour government that abolished tuition fees could put strong conditions back on the university teaching grant that would be presumably how they funded universities. Still, the distraction of the same Secretary of State trying to abolish private schools also now in full-on daily fights with the highest performing universities in the country, and quite possibly sending Oxford and Cambridge entirely private, ought not to be underestimated.

Within the labour market, such a cap would be even harder to introduce. It would be, I believe, very difficult (purely legislatively) to draft a law that covered private sector businesses – many of whom are not headquartered in the UK – around who they could hire or not hire. In the first instance, such companies would argue that such restrictions didn’t apply legally to them. Even if it was determined that it did, at the margins, companies could simply employ graduates via one of their other international offices (like Ireland), set up sub companies to hire staff (all of which would hire up to the 7% threshold); or individuals would set up their own limited companies and “contract” with employers rather than be hired by them. The bureaucracy required by HMRC or DWP to track the presumed annual hiring returns that such companies would be required to make would be significant. Also, what would the penalty for breach be, and where would such a penalty be prosecuted?

So let’s assume that such a cap would be restricted to public sector staff only, which in practice means the civil service and local government. That is relatively easy to do. But government would have to decide – is this something which only applies from now, or retrospectively? I’m assuming the former (unless you want to have to summarily dismiss large numbers of senior staff, some of whom would have left their private schools upwards of thirty years ago). Of all the things proposed so far, this would probably have the biggest effect on dampening down private school demand – but given the time lags between graduate labour entering the workforce and reaching the top levels, would actually make very small short term differences to the types of “59% of permanent secretaries are privately educated” figures often cited.

Nationalise / abolish existing private schools

This is the most hard edged thing which a government could try and do, if it wasn’t satisfied that placing conditions on independent schools was sufficient to achieve its objectives. Let’s consider how this could be done.

The nationalisation of these schools would obviously require legislation. The same issues as flagged earlier still apply – is it possible to draft a law that catches all, but only, the institutions that a Labour government wants to nationalise? As above, I think this would be legislatively tricky, and if not defined right, a strong chance of the government being legally blocked by judicial review from instigating this. Let’s not forget that a decent proportion of independent schools are run by various faith groups, all of whom are very keen on the idea that their right to educate their children in a manner consistent with their faith not be proscribed by the state. We can expect them to be at the forefront of such objections to the legality of any action – that the state doing this is acting ultra vires and contrary to freedom of belief.

But let’s assume such legislation can be passed and any court case fails. There’s then a question of compensation – most nationalisations involve the government essentially buying the private company back from its owners as the way in which it is done. The proposed water nationalisation, for example, will work this way – and one of the arguments is about how the current assets will be valued in order to work out what the right figure is (John McDonnell’s proposal is that Parliament will set the level). Nevertheless the principle of compensation at some level seems to be acknowledged by Labour (which is also why the rail nationalisation plan suggests bringing back the franchises into public ownership once they expire – to avoid having to pay compensation). Independent schools are different in that some – but not all – are charities, not privately owned. Nevertheless, I think there would be an argument – and possibly a legal requirement – to similarly pay compensation. The proposal in the Guardian quoted above is that the government “democratically redistribute” the assets owned by the independent schools to cover these costs but that obviously doesn’t work, in that we’ve just established the government will need to pay for such assets in the first place! So a full nationalisation of all the schools – including acquiring the assets – will have a price tag, presumably in the tens of billions.

The second issue is what happens to all the existing teachers and pupils coming into the state sector. Assuming for argument’s sake that everyone shifts across, and a lot of private school teachers don’t just exit the system (edit: and as @doctorpreece points out on Twitter, those without QTS would have to be grandfathered into the system assuming the government didn’t just kick them out), the per pupil funding costs of these extra 7% of pupils now falls on the state. As a rough estimate, if we assume a £5000 annual revenue cost for the 615,000 pupils coming into the state sector, that’s a shade over £3bn a year. As far as I can see, the proposal for covering this cost comes from the use of the independent schools’ assets. But although some of them are cash, many are fixed assets or endowments and obviously, using fixed capital assets to pay revenue costs doesn’t work (you can’t pay for a recurring cost with a one off item of funding). Moreover on a practical basis realising the cash value of these assets involves selling them. Given that some of them will be needed as new state schools, in effect the proposal is to sell off the luxury bits of top end independent schools to fund the annual running costs of the new state schools. Again, let’s think about this practically. You could of course hypothetically sell off some of the playing fields, museums, theatres etc of Eton for cash. But there isn’t actually much of a market for such assets, because although you can sell some of it (art etc) quite easily, most of the value of the assets discussed only really comes through the land they’re sitting on and the possibility of using that for housing or commercial property. If you can’t do that – and it’s unlikely that you can because you still need to keep various bits of the land used as it currently is, for classrooms etc – then the assets are pretty worthless (how much would you really get for a theatre that stays as a theatre?) And finally, given that even if you can somehow magically rustle up this cash by selling them, on the top end estimates such assets of the whole independent sector (which in truth means the assets of about twenty very wealthy independent schools) are only worth a couple of billion, and so even if we assume government can realise this cash, it only solves one year or so of funding. This slightly painful Twitter exchange between me and abolitionist Robert Verkaik sets out the issue in more depth. In truth, there is no alternative other than a Labour government would have to absorb almost all of the extra £3bn or so annual running costs.

Finally, the last issue here is perhaps the trickiest one of all to solve: even if all existing private schools are nationalised, how can a government prevent new ones being set up? The famous Finnish law of basic education proscribes any schools in the country being run for profit (though various people who know more about Finnish education tell me that such a law if challenged would actually not hold up; it survives because Finnish political and social culture accepts that private schools should not exist, not because it is an enforceable law). But let’s assume that in England such a law would be tested. So a law would need to be very clear and set out in a legally defensible way that schools could not charge fees, let alone make a profit. But how do we define a school? After all, a childminder gathering a small number of children around them and charging a fee for looking after them is presumably not something that the law would want to catch. So we assume this new law would need to allow such childminding groups to continue to exist. Now let’s presume another group of disabled children and parents get together and pay for a number of adults to look after their children during the day, and provide a combination of pastoral support and specific support for their children’s disabilities and also deliver some learning. Again, surely that’s not something that the government would proscribe. And now another group gets together and says that it will run, as a charity, a centre for those children who would otherwise be excluded from schools. Obviously they need to cover the costs of their buildings and adult supervision and the like. Let’s assume that this too, would not want to be barred by the law.

So what is the difference, legally, between such groups – who we assume are allowed - and a group of former Eton teachers who buy a building and offer some form of teaching during the day for a fee? This former Eton group would be willing, let’s assume, to abide by all forms of regulation currently required of independent schools – inspections and so on. But even if they didn’t, or such regulations ceased to apply because there was no independent sector to regulate, they could operate as extensions of home education. Such parents would merely register their children as being home educated, and even moves by government to put a general register around home education and possibly set out requirements for learning wouldn’t affect such a group, as the parents would presumably happily say this is the arrangement for their children being collectively home educated. And once such a principle of such a group existing is agreed – and I can’t see legally how you prevent it – there’s nothing that says that over time such groups can’t charge as much as they did as “schools” before and buy up assets as they did before. They can enter children for public exams. They can teach the same curriculum. They can have uniforms with funny top hats and coat tails. They can teach sport and art and drama. They can build up endowments for the future

Maybe the response is – fine – let such groups set up, they’re only ever going to educate a fraction of a percent of children. And conceivably that’s true (but actually there’s no reason that such schools couldn’t grow very large. What I’ve just described is the rapidly growing Low Cost Private School (LCPS) model which is educating millions of children around the developing world where the state education system is poor quality or simply doesn’t exist). But then the question is – do you want to abolish private schools in principle after all? Or do you just want to tear down the existing ones? Because I can’t see a way you would legally stop new private groups ever setting up.

Conclusion

The rhetorical case for why the left of Labour wants to abolish these schools is strong. The argument of inequity is powerful, and the case of the unfairness for a better education being one that is purchased by parental wealth is real. But regardless of whether you hold to this belief or not, rhetoric doesn’t actually achieve any goals. What was striking from the event I went to is that the rhetoric rapidly falls away when it turns to practicalities, beyond long debated suggestions around charitable tax relief and the like which wouldn’t achieve the goal of abolition. So what I’ve tried to set out here is my genuine best thoughts on how you could turn rhetoric into reality.

My conclusion is I can quite easily see how Labour could shrink the private school sector over time. But I can’t see how it is possible – legally or policy wise – to actually phase out or abolish private schools. This seems destined to be another in the long line of utopian ideals over achievable goals.

(But if you disagree – tell me! Always up for a wonky discussion about education law and policy…..but please don’t just assert this can happen and pray political will, or call me a neoliberal shill and play the man not the ball. Show me your argument. I’d genuinely love to hear it).

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