The Compact: Sharpening its teeth?

Dan Fluskey“...the Compact…doubtless would form the expectation of behaviour in the absence of compelling reasons to the contrary.”

This quotation from Hon Mr. Justice Blake in a recent judicial review case against Birmingham City Council highlights the importance of the Compact and demonstrates that the courts may be starting to consider Compact commitments seriously within public law.

To be successful in a judicial review ruling against a public body it has to be shown that the decision that was made was unfair, illegal, or irrational. That’s a tough test to pass and requires there to be something manifestly and fundamentally flawed in the decision-making process (in the case mentioned above the judge found that Birmingham City Council had not complied with their Public Sector Equality Duties – there will be more to come on the case and how the judge came to this conclusion in a future blog post!).

So while judicial review is often a hard case to win, there’s a concept in public law of ‘legitimate expectation’ that may become more relevant. In a recent case a judge summed up the principle of legitimate expectation saying:

“Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not do so.”

With new Best Value guidance (currently out for consultation) proposing that "Authorities should be sensitive to the benefits and needs of voluntary and community sector organisations (honouring the commitments set out in local Compacts)" we are likely to have new statutory guidance which, for the first time, sets out an expectation from central government that local authorities should follow what they have set out to do.

I don’t mean of course that all decisions taken by local authorities that aren’t consistent with their Compacts will be overturned in the courts, but taking together the concept of legitimate expectation, the draft new Best Value guidance, and the fact that the national Compact was renewed last year, voluntary organisations may very well be in a stronger position than ever to challenge unfair decisions made by public bodies.

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The Compact Advocacy programme is part of NCVO and works in partnership with the Public Law Project to give advice to voluntary sector organisations and challenges unfair decisions made by public bodies. Email evsadvice@ncvo-vol.org.uk or call 020 7520 3161 to contact Compact Advocacy.

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