Understanding Public Law
and the Compact
A short guide to using
public law to protect
your organisation and
its funding
March 2011
What are you going to get
out of this session?
This session will help you to:
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Understand how using public law and the Compact can
help to protect your
project and its funding
Identify what you can do if
faced with a problem in
your dealings with
public bodies
How you can use the Compact to strengthen your
relationship with public bodies
March 2011
Empowering the Voluntary
Sector project
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Funded by the Big Lottery Fund
NAVCA, Compact Advocacy and the Public Law Project
working in partnership alongside Voice4Change England
We aim to help voluntary and community organisations
to understand the principles of public law and the
Compact, and to use this understanding to challenge
unfair or unlawful decisions made by public bodies
Three key outputs
1. Training
2. Advice
3. Information
March 2011
Strengthening the Voice of the
BME Third Sector Project
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Funded by BLF and Commission for the Compact
Aims to develop, strengthen and integrate the Black
and Minority Ethnic Third Sector across England
Four key outputs:
1. Improve collaboration, communication and peer support
2. Increase access to, and effectiveness in, policy making
processes
3. Improve the understanding, awareness and use of
the Compact
4. Strengthen relations between BME infrastructure and
mainstream infrastructure
March 2011
What are public bodies and how
should they behave?
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In broad terms, a public
body is an organisation
that carries out a
governmental function, for
example, a local authority,
a PCT, a government
department
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Public bodies must
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Act lawfully and fairly
Not exceed their powers.
March 2011
What are their public functions?
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A public function is a function delivered to the public in
the broader sense
It could be described as service delivery by a public
body:
Funding
Housing
Transport
Tax/ Benefits
Which public bodies do you work with?
March 2011
What is Public Law?
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Set of legal rules (not an Act) which ensure
that when public bodies carry their out
public functions they:
– Discharge their legal duties
– Do not abuse or exceed their powers
Private law - You can do as you like unless it is illegal,
measured by who is right and who must pay
Public law - A public body can only do what it is legally
allowed to do, measured by their behaviour &
intervention
March 2011
Where does public body
authority derive from?
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Their actions fall into two categories: Duty or Power
Duties and powers arise from Acts of Parliament or
Secondary Legislation
Supported by guidance – internal and external
A public body can depart from guidance it has a good
reason and clear reason
Public body cannot refuse access to guidance docs,
consider using the Freedom of Information Act
The Compact is a form of guidance
March 2011
The Compact: An Overview
An agreement between Government and the voluntary
and community sector
 PURPOSE – strengthen partnership
 Based on a set of outcomes:
Strong, diverse and independent civil society
Effective and transparent design and development of
policies, services and programmes
Responsive and high-quality services
Managing changes to programmes and services
Equal and fair society
March 2011
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The status of the Compact
• FUNDAMENTAL FACTOR – voluntary status
• Compact underpinned by Public Law principles
R (Berry) v Cumbria County Council
“It seems to me that the Compact was more
than a wish list but less than a contract. It is a
commitment of intent between the parties
concerned.”
Taken from paragraph 44 of the judgment made by His Honour Judge
Mackie in the above case. (November 2007)
March 2011
Local Compacts
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Strengthen relations between local VCS
and local public bodies
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Vary from area to area to reflect local needs
and issues
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Compact principles are reflected in local performance
frameworks – e.g. LEPs, Participatory Budgeting
March 2011
Using the Compact to
strengthen the equality sector (1)
Strengthen
Partnerships
Challenge
Bad
Practice
Policy
Voice
The
Compact
and BME
VCS
Tackling
Racism,
Inequality
and
Exclusion
Better
Services
Funding
Support
Challenge
Funding
Decisions
March 2011
Using the Compact to
strengthen the equality sector (2)
How to use it:
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Take it to meetings and use as a tool for partnership
working.
Use it as a guide to develop good relationships with
funding bodies.
Use it to challenge bad practice by a statutory
partner
Use it to resolve disputes with funders and policy
makers.
Use it to develop good practice within your
organisation by implementing the voluntary sector
undertakings.
March 2011
What has the public body done
wrong?
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Illegality
Fairness
Irrationality
Maladministration
March 2011
Illegality and Unfairness
1.
Illegality:
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2.
Must apply law correctly
Ask the right questions and undertake sufficient enquiry
when deciding an issue
Mustn’t fetter their discretion e.g. putting in criteria which
can’t be achieved by many VCSOs
Must not exceed their powers
Unfairness:
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Clear decision making processes
Must follow agreed procedures
Give reasons for decisions
No breaches of legitimate expectation
March 2011
Irrationality and
Maladministration
3.
Irrationality:
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4.
Must make rational and reasonable decisions e.g.
funds for advice work going to a play scheme
Difficult to prove, pass to the advice team!
Maladministration:
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Public Law wrongs having a lower level of “effect”
on services/ provision
Poor administrative practice
March 2011
Are they complying with the
Compact?
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Commitments for Government and VCS – puts
outcomes into practice
Failure to comply with Compact commitments
are challengeable (accountability measures)
Most common seem to be lack of consultation
and funding withdrawals
Breach of the Compact by a public body may
be breach of Public Law
March 2011
Key Compact commitments for
equality groups
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Requirement to understand specific needs
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Requirement to carry out impact assessments
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Recognition that single group funding can promote cohesion
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Alignment with Equality Act 2010
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Requirement to ensure social, environmental and economic value
for part of the design and delivery of policies, programmes and
services
March 2011
What do I need to do when
a problem occurs?
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Gather all your project documents including meeting
notes, bids documents, application and monitoring
records
Ask the public body for their internal documents, e.g.
guidance, minutes of meetings. decisions, etc
Make sure you have made notes of all phone and
face-to-face conversations
Follow-up all discussions on crucial issues
Ask the difficult questions – yourself, your team and
the public body
March 2011
What's the next step?
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Identify what has gone wrong?
Sum up in one sentence
Have you got anything wrong?
Could you could have avoided the problem?
Is it about personalities?
How have you presented your case?
Are they clear about what your problem is?
Analyse the impact of the decision on your service
users, the community and your organisation
Draft a short chronology setting out the key facts
March 2011
What action can I take?
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Talk to your funder
Compact
Complaints and
Ombudsman
Judicial Review
March 2011
Remedies
•
Open the Dialogue – Talk though the issues as a critical friend
•
Compact – use your local Compact as a non-adversarial method of
negotiating a resolution based on the Compact principles, if this fails
then consider contacting the Compact Advocacy team and getting their
support
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Complaints and Ombudsmen – point out public law wrongs and
Compact wrongs, If complaining fails and the issue is one of
maladministration consider the Ombudsman. You must use the body’s
complaints procedure first, but remember, it is a lengthy process
March 2011
Remedies
1.
Judicial Review – The court case that looks the behaviour of public
bodies when delivering public functions. The aim is to get a decision
quashed, the public will then have to take it again. It is complex and
potentially costly and as with all court cases, no guarantee of success.
Legal aid may be available to cover the costs of the case. You may also
be able to get a Court order to prevent actions being taken or funding
being cut before the case is heard. You must act quickly as you only
have three months from the time the action or decision is taken in order
to get proceedings issued.
March 2011
Where to get more help
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Contact us at…
Contact the EVS advice team on
0207 5320 3161 or email
evsadvice@ncvo-vol.org.uk
Come on a one day course and learn more
Contact the EVS Project at NAVCA by
emailing terry.perkins@navca.org.uk
Contact Voice4Change England by emailing
ravi@voice4change-england.co.uk
March 2011