The recent furore surrounding the charitable status of public schools is weighing heavily on Matthew Burgess’s mind. The Independent Schools Council (ISC) only created a legal function in January and already it is facing what is likely to be its toughest-ever challenge.
From 1 April 2009 public schools will have to prove they are charities by publicly detailing good works they undertake. This will be critical if they want to retain their charitable status, which carries with it tax breaks estimated at £100m across the sector.
The rules, introduced by the head of the Charity Commission Dame Suzi Leather, have enraged the public school sector. The ISC is leading a lobbying campaign to have the legislation watered down. This sparked speculation in the press about a possible legal challenge to prove that the new rules are effectively illegal.
For his part, Burgess would like to put the record straight. “We haven’t said anything about legal action,” he says. “We have different ideas about what a charity is. The Charity Commission hasn’t got the law right. They’re taking a populist approach towards their definition of what a charity is. But fundamentally, a legal challenge isn’t the right approach.”
The commission wants public schools to prove their charitable status and has introduced a raft of measures designed to open the schools to children from less privileged backgrounds.
Burgess is not opposed to this. The 1,280 schools represented by the ISC already give away an annual £300m in scholarships and bursaries.
Of more concern to the ISC is Leather’s insistence that any public school that fails to live up to its charitable status under the new legislation will be stripped of its assets.
Burgess says that, if public schools face the threat of closure, it will have a knock-on effect for state schools. “We educate 500,000 pupils who have the right to attend state schools,” he says. “If they all went to state school it would cost an extra £2.4bn. Compare that with the £100m tax break the Government gives the sector – the argument is completely distorted.”
For now, half of Burgess’s time is spent lobbying the Government. Since taking up the post he has met with the Parliamentary Under Secretary of State for Schools and Learners Andrew Adonis and has given evidence to parliamentary committees.
He has appointed Sarah McKimm to the legal practice as education counsel with a brief to keep the ISC up to speed with a “steady stream of guidance on all aspects of child welfare” and to make sure schools are kept up to date with new legislation.
Another new hire, Carl Swift, has been appointed on a one-year contract to deal specifically with work created by the Charity Commission. It is a small department and one that Burgess believes has scope to grow.
The ISC is restricted by its financial resources as a not-for-profit organisation. Burgess is proud that it has decided to invest in a legal function, but believes it has come too late for certain cases, such as the Office of Fair Trading investigation that in 2005 found 50 leading independent schools, including Eton and Harrow, guilty of illegal price-fixing.
With no in-house legal team at the time, Burgess believes the ISC fell foul of new legislation outlawing price-fixing and that schools inadvertently found themselves in breach of the law.
“It’s almost amazing the ISC has lasted so long without a legal practice,” he says now. “When I came for my interview I told them that if they’d had a GC on their staff in 2004 [when the price-fixing law was introduced] they would have realised how the law affected them.”
More recently Burgess cites the Corporate Manslaughter and Corporate Homicide Act (2007) as legislation that will impact on schools. “Education is politicised and highly regulated and is always a front-page topic, so there’s plenty of work to do,” he says.
He has big plans for the department, saying he wants to create a legal forum each term where all public schools’ trade associations are invited to meet the legal team and discuss the most recent changes to the law.
Burgess also wants to update the ISC’s website to communicate more effectively with members. There is a possibility of creating an online ‘policy bank’ that would allow schools to search any area of the law and assess what implications it has for them.
“We’re getting positive responses to the legal function,” says Burgess. “It’s perceived as an advantage that independent schools speak with one voice and one mind. It’s a recognised advantage to have one response to the Charity Commission.”
It is rare that a legal practice can unite a company or trade organisation, but in the face of weighty opposition Burgess appears to have done just that.
Name: Matthew Burgess
Organisation: Independent Schools Council
Position: General counsel
Reporting to: Chairman Dame Judith Mayhew Jonas
Turnover: Representative of a sector with a combined turnover of £5bn
Number of employees: 30
Legal spend: Less than £50,000
Legal capability: Three
Main law firms: Bates Wells & Braithwaite, Bircham Dyson Bell, Eversheds, Farrer & Co, Stone King Solicitors.
Matthew Burgess’s CV
Education: 1981-86: Brighton College
1986-89: BA (Hons) Law, Queens’ College, Cambridge
Employment: 1992-94: Trainee, Gouldens
1994-97: Associate, Gouldens
1998-2005: Managing associate, Linklaters Singapore and London
2005-07: Principal legal counsel, Centrica
January 2008-present: General counsel, Independent Schools Council