Article Solicitors Journal - 2008

What has the Compact ever done for us? Stefan Simanowitz reflects on ten years of the Compact in England. What has it achieved, where is it going and what is its legal status? In an iconic scene in Monty Python’s Life of Brian, Reg, aka John Cleese, the leader of the People’s Front of Judea, is trying to whip up anti-Roman feeling among his squad of unenthusiastic commandos. “What have the Romans ever done for us?” he asks. “Well, there’s the aqueduct,” somebody suggests. “The sanitation,” says another. “Public order,” offers a third. Reg reluctantly acknowledges that there may have been a couple of benefits. But then steadily, and with increasing enthusiasm, his men reel off a litany of the good things the Roman occupation has brought. By the time they’re finished they’re not so sure about the whole insurgency idea after all and an exasperated Reg tries to rally them: “All right, but apart from the sanitation, the medicine, education, wine, public order, irrigation, roads, a fresh water system, and public health, what have the Romans ever done for us?” In this article I shift the backdrop from ancient Judea to modern day England and change the question to ask “What has the Compact ever done for us?” Like with the Roman occupation of Judea, the substantial achievements of the Compact are not always immediately apparent to everyone. But with on reflection the changes that the Compact has delivered become immediately apparent. Introduced in 1998, the Compact on Relations between Government and the Voluntary and Community Sector in England is a set of principles and undertakings that provide a framework for working relations between the public sector and the voluntary and community sector. As the Compact enters its tenth year it is clear that there have been many positive changes to the relationship over the past decade but problems persist and new issues arise as the policy landscape changes. Whilst the Compact has retained both its symbolic and practical importance and remains central to improving the relationship between the partners, there is clearly still a distance to travel. A gap remains between the universally endorsed principles of the Compact and their practical application on the ground. Evidence from the sector suggests awareness of the Compact on both sides of the relationship is low, Compact compliance is patchy and effective Compact implementation at local and national level is yet to be fully realised. Despite the fact that the Compact is overwhelmingly endorsed by the sector there is a reluctance among voluntary organisations to make explicit use of it in tackling problems. Although the service offered by the Compact Advocacy Programme is increasingly seen as an effective means of enforcing Compact compliance, no Compact breach has so far been referred to the Compact mediation service or the Ombudsman. Lack of awareness of the Compact on both sides of the relationship,

combined with the wilful disregard for its requirements, is a key barrier to effective Compact implementation. Issues of Compact awareness, compliance and implementation are deeply intertwined and not always easy to unpick. A recent focus group survey by Compact Voice found that there was overwhelming support for the Compact in principle but that there was a gap in putting the principle into practice. This gap has clearly led to a degree of scepticism about the Compact among some within the voluntary and community sector. The fact that Compact compliance is not monitored and there are no obvious enforcement measures or remedies when a breach occurs goes some way to explain the scepticism and the lack of reporting of Compact non-compliance. However, the reluctance among voluntary and community sector groups to challenge a local authority over breaches of the Compact also results from a fear of jeopardising future funding. For many on both sides of the relationship, the Compact has come to be seen as a tool for the sector to use to challenge government. Rather than regarding it as a positive means of partnership working and mutual cooperation the Compact is increasingly seen in negative or adversarial terms. The government often see it as “just another thing they have to comply with” and the sector see it as “a weapon of last resort”. There is something of a division within the sector between those who feel the Compact should be more about partnership and the relationship, and those who feel it should concentrate more on compliance and enforcement. It is not helpful to see the debate as one framed in terms of "government bad voluntary and community sector good". Both sides have the responsibility to make the Compact work and a “them and us” approach is counter-productive. The public sector can become wary in its relationship with the voluntary sector where organisations they engage with point out the failures of the statutory sector whilst not admitting their own faults. There is a need for the sector to recognise their part in a failure to implement the Compact and codes. Nowhere is the conflict between the voluntary sector and the government more acute than around issues of funding. Conflicts around funding can have a detrimental effect on the confidence and trust built through other aspects of partnership working. The widespread concern within the sector as to how the changing nature of commissioning and contracting might negatively affect the nature of the relationship between statutory funders and local voluntary and community organisations has led to a desire for the Compact to take a more prominent role in helping manage these tensions. A recurring refrain from the voluntary and community sector is that the Compact is “lacking teeth”. The lack of government accountability for Compact non-compliance and the lack of enforcement measures to tackle breaches are regularly cited as weaknesses of the Compact. Those calling for the legal powers however, are often doing so as a result of frustration and do not recognise that the Compact already has some force under public law. As the work of the Compact Advocacy Programme and NAVCA/Public Law

Project demonstrate, the sector can be empowered through use of the Compact and public law principles. The Compact can create a legitimate expectation among public bodies to adhere to the procedure that has been agreed. If, for example, a public body has agreed under the Compact to consult for 12 weeks with the voluntary sector over particular issues, and they fail to do so, this may render any decision then taken by the body unlawful. A legitimate expectation would be more likely to exist if a public body had specifically signed up to the Compact, but even a commitment from central government might be sufficient to create such a legitimate expectation. The Compact and codes have been endorsed by central government as documents that should be adopted by all central government bodies and they have the weight of guidance. If a public body fails to take guidance into account when making a decision their decision might be rendered unlawful. Whilst there has yet to be a test case which establishes the precise legal status of Compact commitments, it is likely that there will be one soon. Indeed, two recent cases have already hinted at the likely result of any such case. In the High Court, Judge David Mackie QC stated that the Compact was “more than a wish list”, it was “a commitment of intent”. He went on to say that local authorities should consider the Compact when making decisions and treat Compact requirements as yardsticks for deciding what was reasonable. In the second case, Judge Oliver-Jones QC asserted in a draft reserve judgement, that terms in the Compact had a real prospect of being viewed as implied contractual terms. Although the Funding Code itself “is not, and cannot be, a contractual document…it is more than merely arguable that the substance of the Code is capable of being incorporated into the particular contract by necessary implication.” Despite having some legal force, it is important not to lose sight of the fact that the Compact is a value-driven document that invokes a mutual process of developing, maintaining and enhancing relationships. Ideally it should not be about penalising or punishing but about managing ambiguities and learning how to work together in a better way. Over the past year, the Compact Advocacy Programme has actively supported and campaigned on behalf of voluntary and community organisations in cases where the Compact has been breached. There are two strands to the programme, local and national, which relate to the type of public bodies involved in the cases. As well as giving advice and support to individual organisations about the Compact and how they can use it in their work, the programme also takes on cases and actively works to reach solutions that are Compact-compliant and satisfactory to both parties. In the past year the programme has handled 80 cases involving more than £3 million. About one third of all cases have been on behalf of more than one organisation and the results achieved will therefore have wide ranging effects for hundreds of groups. In every case that the programme has handled, there have been improvements in the relationship between the two sectors, whether or not all objectives which the organisations have set are achieved. All cases are evaluated when they finish and evaluation forms completed by client

organisations consistently show high levels of satisfaction with the support received. The success of the programme in achieving positive change using the Compact shows that it can have ‘teeth’ when it is used but it seems more training and resources could help organisations to do more of this work themselves in future. The Compact has been with us for almost a decade and whilst it is clear that some of the Compact’s initial momentum might have been lost, and some of the optimism with which it was greeted might have faded, the Compact’s potency remains intact. There has been development and improvement in the relationship between government and the sector. The profile and investment in the Compact over the last year has been significant and wholly welcome. The sector now has its own Minister and a new Commission for the Compact taking strides to improve the relationship. There is clearly an ongoing gap between the relationship outlined in the Compact and the reality of the every day experience for voluntary and community organisations. But as Reg might have put it: “Okay. But apart from better government/sector relations, clear standards for consultation, improved funding processes and resources for building sector capacity, enforceable rights and remedies and countless wins from Local Compacts across England, what has the Compact ever done for us?” Stefan Simanowitz is Compact Voice Manager based at NCVO. Compact Voice is an independent body representing the voluntary and community sector on taking forward the Compact. Visit www.compactvoice.org.uk