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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, theleader of the People’s Front of Judea, is trying to whip up anti-Roman feelingamong his squad of unenthusiastic commandos. “What have the Romansever done for us?” he asks.“Well, there’s the aqueduct,” somebody suggests. “The sanitation,” saysanother. “Public order,” offers a third. Reg reluctantly acknowledges that theremay have been a couple of benefits. But then steadily, and with increasingenthusiasm, his men reel off a litany of the good things the Roman occupationhas brought. By the time they’re finished they’re not so sure about the wholeinsurgency 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 theRomans ever done for us?”In this article I shift the backdrop from ancient Judea to modern day Englandand change the question to ask “What has the Compact ever done for us?”Like with the Roman occupation of Judea, the substantial achievements of theCompact are not always immediately apparent to everyone. But with onreflection the changes that the Compact has delivered become immediatelyapparent.Introduced in 1998, the Compact on Relations between Government and theVoluntary and Community Sector in England is a set of principles andundertakings that provide a framework for working relations between thepublic sector and the voluntary and community sector. As the Compact entersits tenth year it is clear that there have been many positive changes to therelationship over the past decade but problems persist and new issues ariseas the policy landscape changes. Whilst the Compact has retained both itssymbolic and practical importance and remains central to improving therelationship between the partners, there is clearly still a distance to travel. Agap remains between the universally endorsed principles of the Compact andtheir practical application on the ground. Evidence from the sector suggestsawareness of the Compact on both sides of the relationship is low, Compactcompliance is patchy and effective Compact implementation at local andnational level is yet to be fully realised. Despite the fact that the Compact isoverwhelmingly endorsed by the sector there is a reluctance among voluntaryorganisations to make explicit use of it in tackling problems. Although theservice offered by the Compact Advocacy Programme is increasingly seen asan effective means of enforcing Compact compliance, no Compact breachhas so far been referred to the Compact mediation service or theOmbudsman.Lack of awareness of the Compact on both sides of the relationship,

combined with the wilful disregard for its requirements, is a key barrier toeffective Compact implementation. Issues of Compact awareness,compliance and implementation are deeply intertwined and not always easy tounpick. A recent focus group survey by Compact Voice found that there wasoverwhelming support for the Compact in principle but that there was a gap inputting the principle into practice. This gap has clearly led to a degree of scepticism about the Compact among some within the voluntary andcommunity sector.The fact that Compact compliance is not monitored and there are no obviousenforcement measures or remedies when a breach occurs goes some way toexplain the scepticism and the lack of reporting of Compact non-compliance.However, the reluctance among voluntary and community sector groups tochallenge a local authority over breaches of the Compact also results from afear of jeopardising future funding.For many on both sides of the relationship, the Compact has come to be seenas a tool for the sector to use to challenge government. Rather than regardingit as a positive means of partnership working and mutual cooperation theCompact is increasingly seen in negative or adversarial terms. Thegovernment often see it as “just another thing they have to comply with” andthe sector see it as “a weapon of last resort”. There is something of a divisionwithin the sector between those who feel the Compact should be more aboutpartnership and the relationship, and those who feel it should concentratemore 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 tomake 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 statutorysector whilst not admitting their own faults. There is a need for the sector torecognise their part in a failure to implement the Compact and codes.Nowhere is the conflict between the voluntary sector and the governmentmore acute than around issues of funding.Conflicts around funding can havea detrimental effect on the confidence and trust built through other aspects of partnership working.The widespread concern within the sector as to how thechanging nature of commissioning and contracting might negatively affect thenature of the relationship between statutory funders and local voluntary andcommunity organisations has led to a desire for the Compact to take a moreprominent role in helping manage these tensions.A recurring refrain from the voluntary and community sector is that theCompact is “lacking teeth”. The lack of government accountability for Compact non-compliance and the lack of enforcement measures to tacklebreaches 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 donot recognise that the Compact already has some force under public law. Asthe work of the Compact Advocacy Programme and NAVCA/Public Law

Project demonstrate, the sector can be empowered through use of theCompact and public law principles. The Compact can create a legitimateexpectation among public bodies to adhere to the procedure that has beenagreed. If, for example, a public body has agreed under the Compact toconsult for 12 weeks with the voluntary sector over particular issues, and theyfail to do so, this may render any decision then taken by the body unlawful. Alegitimate expectation would be more likely to exist if a public body hadspecifically signed up to the Compact, but even a commitment from centralgovernment might be sufficient to create such a legitimate expectation.The Compact and codes have been endorsed by central government asdocuments that should be adopted by all central government bodies and theyhave the weight of guidance. If a public body fails to take guidance intoaccount when making a decision their decision might be rendered unlawful.Whilst there has yet to be a test case which establishes the precise legalstatus 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 suchcase. 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 thatlocal authorities should consider the Compact when making decisions andtreat 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 asimplied contractual terms. Although the Funding Code itself “is not, and cannotbe, a contractual document…it is more than merely arguable that thesubstance 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 factthat the Compact is a value-driven document that invokes a mutual process of developing, maintaining and enhancing relationships. Ideally it should not beabout penalising or punishing but about managing ambiguities and learninghow to work together in a better way.Over the past year, the Compact Advocacy Programme has activelysupported and campaigned on behalf of voluntary and communityorganisations in cases where the Compact has been breached. There are twostrands 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 toindividual organisations about the Compact and how they can use it in their work, the programme also takes on cases and actively works to reachsolutions that are Compact-compliant and satisfactory to both parties.In the past year the programme has handled 80 cases involving more than £3million. About one third of all cases have been on behalf of more than oneorganisation and the results achieved will therefore have wide ranging effectsfor hundreds of groups. In every case that the programme has handled, therehave been improvements in the relationship between the two sectors, whether or not all objectives which the organisations have set are achieved. All casesare evaluated when they finish and evaluation forms completed by client