Christopher Price: It's time for Labour to take action against Eton

The Charities Bill, which contains a potential time-bomb for our more exclusive public schools, has died with the general election. When it returns, it ought to provoke a proper debate about what some of these schools are doing pretending to be charities.

The Charities Bill, which contains a potential time-bomb for our more exclusive public schools, has died with the general election. When it returns, it ought to provoke a proper debate about what some of these schools are doing pretending to be charities.

So far, any organisation that provides education has enjoyed a presumption of charitable status and the financial privileges that go with it. In future, a "public benefit" criterion - at the moment, a vague phrase that could mean anything - will have to sit alongside the provision of education. If the Charity Commission sets tough rules, these could trigger the withdrawal of charitable status from some of our "public" schools. If it sets limp, vague ones - as the Downing Street Strategy Unit suggests it should - then a few token gestures such as lending a playing field to the local comprehensive will suffice.

The Bill is an eccentric one. Normally, legislation seeks to define the principles it puts forward. This refuses to do so. It defines "public benefit" in terms of four centuries of common law, a messy mélange of random, impertinent and often self-serving decisions by members of the judiciary. A committee of both houses, chaired by Alan Milburn, Labour's election supremo, asked Fiona McTaggart, the Home Office minister responsible for charities, why Parliament could not define it; she replied that the task had proved too difficult for ministers.

So, in the Bill, it is left to the Charity Commission, an appeal tribunal and the courts. The only fundamental legislation on charities was enacted just over 400 years ago - the Charitable Uses Act of 1601, sometimes referred to as the Statute of Elizabeth. This is a jumbled portfolio of early 17th-century practical social necessities, from the repair of bridges to the marriage of old maids. It is a bizarre basis upon which to craft new law in 2005.

Much case law has been designed to squeeze institutions that patently do not deserve it into a "public benefit" category. Two recent bits of charity legalese that would maintain Eton as charitable are: "The fact that the charitable facilities or services will be charged for, and will be provided mainly to people who can afford to pay the charges, does not necessarily mean that the organisation is not set up for and does not operate for the benefit of the public," and: "Is it possible to show that the less well off are not wholly excluded from any possible benefits, direct or indirect?"

Yet Eton was founded as a charity for 12 poor scholars in the parish of Eton who were "competent at Donatus and plainsong" (they were meant to know a bit of Latin and have nice voices). On the excuse that the supply of gifted but poor youths was drying up, headmasters rapidly took on private pupils and the schools became nurseries of the nation's moneyed élite.

Over the past century, various schemes (always ignored by the top "public" schools) such as the direct grant system and the assisted places scheme purported to let a few poor children in. Both were quickly and ruthlessly exploited by the upwardly mobile middle classes.

So the Charities Bill is not particularly about charities. It is about education policy and the public/private divide in which a subsidy to one part - through charitable tax relief - means there is less cash for the other.

Tim Brighouse, the London education supremo, recently proposed a scheme that could bridge the divide. In it, the word "collegiate" would replace the word "comprehensive" in the terminology of secondary education, and local collegiate partnerships involving all secondary schools (state and independent) would be developed, especially in our cities. Many independent day-schools already co-operate with their local state schools in this way and will want to join the new "school improvement partnerships" the Government is developing.

These independent schools should retain their charitable status. But there is no longer a case for a state charitable hand-out to the Etons, Harrows and Winchesters, which revel in their role of entrenching social exclusivity.

education@independent.co.uk