Using the Wrong Policy Tools: Education, Charity, and Public Benefit

Date01 December 2012
Published date01 December 2012
AuthorAlison Dunn
ISSN: 0263-323X, pp. 491±514
Using the Wrong Policy Tools: Education, Charity, and
Public Benefit
Alison Dunn*
A recent decision on the application of public benefit under the
Charities Act 2006 sidestepped the political debate surrounding the
charitable status of independent fee-charging schools. The broader
political context nevertheless underscores the legislative reforms, and
this article questions whether the new statutory public benefit require-
ment has utility as a welfare policy tool in the field of education. It
examines the public benefit requirement in charity law against the
backdrop of government policy towards education and the broader
political agenda for a mixed economy of welfare provision, and argues
that the difficulties Labour faced in developing its education policies
were replicated in the application of the post-Act public benefit
requirement to fee-charging schools. As a result, achieving broader
policy goals for widening educational opportunity through public
benefit was almost impossible given the regulatory framework and the
principles upon which charity law is founded.
The election of the Labour Party into government in 1997 heralded a focus
upon community ideals and public services to address economic inequality
and social exclusion, both compromised under the previous Conservative
government's concern with private enterprise and marketization of services.
In a keynote address to the National Council for Voluntary Organisations in
1999, the then Prime Minister Tony Blair emphasized the need for his party
to remember its roots in the cooperative, friendly society, and self-help
ß2012 The Author. Journal of Law and Society ß2012 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Newcastle Law School, Newcastle University, Newcastle upon Tyne NE1
7RU, England
1 H. Haugh and M. Kitson, `The Third Way and the third sector: New Labour's
economic policy and the social economy' (2007) 31 Cambridge J. of Economics 973±
94, at 973.
movements, and for his government to be `outward looking' in terms of joint
working with the voluntary and community sector to achieve social goals, a
point expressly incorporated into the aims and values of the Labour Party's
constitution some four years earlier.
That approach was typical of many
such New Labour speeches at the time, emphasizing the concept of `society'
in the wake of its earlier Thatcherite denial. Social cohesion, citizenship, and
engendering community were ideals used liberally in the Labour Party's pre-
election paper on partnership with the voluntary sector.
This was no minor
development. In a departure from its customary statist position, New
Labour's vision of a `third way' saw traditional state-centred socialism
replaced with a mixed economy of welfare, greater democratization, and the
renewal of communities through devolution, active citizenship, and other
agents of civil society.
This `liberal market framework'
became an open
door for different types of partnerships, harnessing the private and voluntary
sectors alongside the state. For the voluntary sector, organizations came to be
aided by the security of an innovative compact regularizing contractual
relations between the state and the sector.
Over its term of office the Labour
government additionally sought to strengthen the infrastructure of the
voluntary sector and improve its capacity to contribute to public service
delivery. This investment was evident through partnership initiatives, fund-
ing opportunities, and the centralizing of administrative structures within
government via a newly created Office of the Third Sector complete with a
designated Minister. As a result, from 1997, voluntary sector organizations
were brought more visibly into the mainstream of public and socio-economic
From a regulatory perspective, the Charities Act 2006 represented a
culmination of this policy drive for harnessing the voluntary sector. The
policy push was significant, driving forward reform in a field relatively
untouched by the legislature. Amongst other matters, the Act sought to
strengthen organizations for public service delivery by improving trans-
parency and accountability and drawing together the lay and legal view of
charity. In so doing, it set out for the first time in statutory form the legal
requirements for charitable status in England and Wales, comprising the
need for an exclusively charitable purpose and public benefit. These
requirements were by no means new, merely a formalization of the existing
2 Clause IV(4), Labour Party's Constitution and Tony Blair, Keynote speech, NCVO
Annual Conference, 14 February 1999.
3 Labour Party, Building the Future Together: Labour's policies for partnership
between Government and the Voluntary Sector (1997).
4 A. Giddens, The Third Way: The Renewal of Social Democracy (1998).
5 Haugh and Kitson, op. cit., n. 1, p. 983.
6Compact on Relations between Government and the Voluntary and Community Sector
in England (1998; Cm. 4100).
7 J. Kendall, `The mainstreaming of the third sector into public policy in England in the
late 1990s: whys and wherefores' (2000) 28 Policy & Politics 541±62.
ß2012 The Author. Journal of Law and Society ß2012 Cardiff University Law School

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