March 2011

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: Understand how using public law and the Compact can

help to protect yourproject and its funding

Identify what you can do if faced with a problem in your dealings withpublic bodies

How you can use the Compact to strengthen your relationship with public bodies

March 2011

Empowering the Voluntary Sector project

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

Strengthening the Voice of the BME Third Sector Project

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

March 2011

What are public bodies and how should they behave?

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

Public bodies must– Act lawfully and fairly– Not exceed their powers.

March 2011

What are their public functions?

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:

FundingHousing

TransportTax/ Benefits

Which public bodies do you work with?

March 2011

What is Public Law?

Set of legal rules (not an Act) which ensure that when public bodies carry their outpublic 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?

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

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

March 2011

Local Compacts

Strengthen relations between local VCS and local public bodies

Vary from area to area to reflect local needsand issues

Compact principles are reflected in local performance frameworks – e.g. LEPs, Participatory Budgeting

Using the Compact to strengthen the equality sector (1)

March 2011

Challenge Bad

Practice

Tackling Racism,

Inequality and

Exclusion

Better Services

Challenge Funding

Decisions

Funding Support

Policy Voice

Strengthen

Partnerships

The Compact and BME

VCS

March 2011

Using the Compact to strengthen the equality sector (2)

How to use it:– 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?

Illegality Fairness Irrationality Maladministration

March 2011

Illegality and Unfairness

1. Illegality:– 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

2. Unfairness:– Clear decision making processes – Must follow agreed procedures– Give reasons for decisions– No breaches of legitimate expectation

March 2011

Irrationality and Maladministration

3. Irrationality:– 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!

4. Maladministration:– Public Law wrongs having a lower level of “effect”

on services/ provision– Poor administrative practice

March 2011

Are they complying with the Compact?

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

Requirement to understand specific needs

Requirement to carry out impact assessments

Recognition that single group funding can promote cohesion

Alignment with Equality Act 2010

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?

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?

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?

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

• 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

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