Education, along with the relief of poverty, is one of the oldest charitable purposes. In the statute that laid the foundations of charity law in 1601, education was one of the main charitable activities the state wanted to encourage. Centuries later, when Parliament produced an updated list of 13 charitable purposes in the Charities Act 2006, ‘the advancement of education’ was in second place after ‘the prevention or relief of poverty’.

Few would object to education as a charitable activity in itself. What could possibly be wrong with charitable status, including tax breaks and the respect and confidence conferred by the word ‘charity’, for helping young people to realise their potential, contribute to society and thus provide public benefit? In practice, however, the charitable status of education has become a social and political minefield.

Schools in England are a complex mosaic (the other parts of the UK have different systems, not examined here). The 13,254 English schools in 2019 that are free, publicly funded and run by local authorities do not have charitable status. But the 8,398 academy schools, also free and publicly funded but run by central government, are exempt charities (see Chapter 1); this means that the secretary of state for education is their principal regulator, but they have governing bodies required to comply with charity law.

English universities are also exempt charities, with the Office for Students as their principal regulator, while universities in Wales and Scotland are registered charities, regulated directly by the Charity Commission for England and Wales and the Office of the Scottish Charity Regulator, respectively. Meanwhile, about 1,300 of some 2,300 independent schools in England were also registered charities in 2016 – the rest are businesses.

In the case of academy schools and universities, the controversy about charitable status is relatively mild and mainly concerns effective governance, including actual or potential conflicts of interest for trustees. But in the case of independent schools, the controversy is incendiary: just mention the word ‘Eton’. How, critics ask, can a school that charges more than £40,000 a year – nearly one and a half times the median UK income of £29,400 in 2019 – be a charity?