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Changes afoot at the Malvern Hills Trust
The Public Consultation - 'Have Your Say'
The Malvern Hills Conservators, who have adopted the working name the Malvern Hills Trust, are seeking to extend their powers by means of what they refer to as a Charity Commission Scheme; this is a Parliamentary scheme under section 73 of the Charities Act 2011 which, if approved, will lead to the amendment of the Trust's present governing documents (the five Acts of Parliament).
Prior to the Trust’s formal application to the Charity Commission it will be conducting a Public Consultation. This is not a legal requirement but it is a standard part of the scheme making process, as it helps to ensure that the Trustees have properly established the case for making the proposed changes in the interests of the charity and the public. The Charity Commission expects the public consultation to be a genuine and appropriate consultation exercise to take into account the views of the charity's stakeholders.
We attended a special meeting of the Board on 12th August when the Trustees agreed to start the Public Consultation on or about 2nd September 2019, to run for six weeks.
Stop press: the latest news page of the Malvern Hills Trust website reports the Public Consultation will start on 2nd September 2019 and an article in the Grapevine parish magazine lists the roadshows or drop-ins where more information can be obtained, the dates of which have been transcribed to our noticeboard.
WHO SHOULD COMMENT
It is very important that residents of Malvern and the many visitors who walk on the Malvern Hills and Commons submit comments on these proposals. If you feel there are aspects which do not benefit the public you should point these out so that changes to the proposals can be considered.
WHAT WILL THERE BE TO COMMENT ON
The Trust tasked their legal advisers, BWB, to draw up new governance documents. To date about £100,000 of public money has been spent on this, but although the legal draft is nearly complete it appears the Trust is not yet ready to present it for public scrutiny.
The Trust is therefore intending to offer for public comment only a summary prepared by the Secretary.
HOW DO YOU COMMENT
The summary of the Charity Commission Scheme will be placed on the Worcestershire County Council web site, where the public will be able to read it and submit comments after logging in with a username and password. The Trust will put a link on their web site pointing to the Consultation.
The Trust will also set up a venue where residents can drop in to find out more about the proposed scheme and submit comments on paper if they don't have a computer.
WHAT HAPPENS NEXT
After the Public Consultation, comments will be passed back to the Board members of the Malvern Hills Trust, who will have the opportunity to amend their proposals before sending them to the Charity Commission.
Whether the Trust takes any notice of public representations is likely to depend on how many people respond, so it's very important you have your say.
The Malvern Hills Conservators were established in 1884 by an Act of Parliament to protect and manage the Malvern Hills and adjacent commons.
This 'framework' governing the Malvern Hills Conservators was amended by further Malvern Hills Acts in 1909, 1924, 1930 and 1995 and copies of these Acts can be found on the Malvern Hills Trust website.
In 1984 the Malvern Hills Conservators became a registered charity (number 505814).
In 2016 the Conservators decided it was time to modernise again, rebranding themselves as The Malvern Hills Trust (MHT); the change of 'working' name took place in April 2017. This seems to have come about primarily because the Board wanted to place more emphasis on the Malvern Hills Conservators' charitable status and fund raising.
We wondered how much had been spent on rebranding; for example consultants' fees, new signs and logos, building a new website, rebranding vehicles and so on, but so far we have not been able to identify a figure in the accounts as costs fell across financial years and are continuing.
The present Board members (in 2018) are now seeking new powers and a significant reduction in the number of Board members through a Charity Commission Scheme (CCS). The MHT is paying a firm of solicitors BWB a lot of money to draw up the 'Scheme', which will have to go through a public consultation process, probably in early 2019. Then the 'Scheme' will need to be approved by the Charity Commission and finally rubber stamped by Parliament, if it were to go ahead.
The consultation stage should be the first and only time most precept payers, the public and stakeholders will get to see and comment on the detailed proposals. However, the draft legal document is not yet ready (as of 16th August 2019), which is unfortunate.
We think it is important you have your say.
When the Malvern Hills Acts were reviewed by Parliament in 1994 a suggestion was made that in time they should ideally be rolled into one. But politicians said they would not fund this, so the cost would probably have to be met by the Conservators.
Roll on the years and about 2016 the present members of the Board thought it time to seek to modernise the legal framework governing the Malvern Hills Conservators through a Charity Commission Scheme.
News of this was first reported in the Worcester News on 24th July 2017. To quote:
It appears that the Malvern Hills Trust then engaged a London based legal firm Bates Wells Braithwaite (BWB) to look through the Malvern Hills Acts and produce a consolidated document, adding in the new powers the Trust would like to have etc.
On 2nd May 2018 Mathon Parish Council was briefed by the Chairman and Chief Executive of the Malvern Hills Trust and details have been reported in their minutes. To quote:
On the 14th May Guarlford Parish Council was briefed by the Secretary of the Malvern Hills Trust. To quote from their minutes:
The proposal that the number of Board members should be reduced from the present 29 to 12; of whom only 6 would be elected may be contentious. We wonder if that is appropriate for a public body, and suggest the rationale for that needs to be explored, and if necessary challenged.
The Malvern Hills Trust budgeted £100,000 for this work, but at the Board meeting in September 2018, it was noted that £85,000 had already been billed by BWB, and in the light of this the Chairman agreed to the budget being increased to £145,000.
When asked what what would happen if that wasn't enough the Chairman said that the Finance Committee should come back to the main Board.
It does seem the MHT is spending an awful lot of public money on 'paperwork', and one wonders exactly what the overall cost and benefit will finally be.
It is not clear to us from which account the money is being drawn to pay for all this, and what cannot be afforded in consequence.
The Charity Commission will require the Malvern Hills Trust to hold a properly advertised and robust Consultation.
As of October 2018 probably the majority of people living in the Malvern Hills area will not have heard of the Charity Commission Scheme although preliminary briefings have been given to parish councils - though not for some reason to Malvern Town Council.
The Trust had been expecting the Consultation to take place over 6 to 8 weeks starting in either December 2018 or January 2019, but this has slipped to September, partly due to the government's focus on BREXIT.
As far as we know the Malvern Hills Trust are not currently planning to give presentations, for example in the Malvern Theatre Complex, but could be offering drop in sessions where the public can view the documents and ask questions. The volume of the draft scheme is expected to be between 130 and 160 pages of A4; an executive summary is planned.
Public comments will then be fed back to the Trust and the Charity Commission who will review the document and then pass the final version to government. It currently seems that the Department of Culture Media and Sport will be happy to pass this on for rubber stamping without parliamentary oversight, assuming there will be nothing to embarass the minister, so it is important precept payers look through the proposals with a fine toothcomb, and inform the Trust and Charity Commission of any concerns.
The Malvern Hills Trust had hoped to have the new legislation approved before the next elections to the Board, which are due to take place before 1st November 2019, but that now appears unlikely.
Currently we have not seen the 'Statement of Need', which presumably must have been shown to the Charity Commission, and the Department of Culture Media and Sport, nor have we seen the instructions given to the Malvern Hills Trust's solicitors BWB. Nevertheless there are some points the public might like to think about.
Reduction in number of Trustees
We think very strongly that the number of Trustees should remain the same in order to preserve public accountabilty. Also from a practical point of view a large number of Trustees is required in order to run the various Committees and cover the workload taken on by volunteers.
Accountability and transparency
Between about 2009 and 2011 the Malvern Hills Conservators attempted unsuccessfully to evict their tenant from St Ann's Well. A lot of public money was wasted and the Conservators were censured by the Charity Commission for mishandling the matter, and lack of transparency.
In 2018/19 precept payers on the Guarlford Road were asking questions about an easement requested from Chance Lane into a field known as Rose Farm, and similar criticisms about lack of transparency emerged even though the MHT says it 'seeks to act in-line with the FOI Act'.
The Guarlford Road
As a small charity the Trust is not subject to the Freedom of Information Act, but we propose that stronger words should be written into the Charity Commission Scheme along the lines:
"The Trust shall act as though it were subject to the Freedom of Information Act".
This is especially needed as the MHT is proposing to reduce the number of accountable Board members.
Since precept payers are forced to fund the Malvern Hills Trust through their Council Tax, one might have thought that the Trust would have to take into account the opinion of local residents, for example, expressed through Malvern Hills District Councillors nominated to the Board. We also thought Board members might have some loyalty to the precept payers who elected them, but the Chairman of the MHT has made it quite clear that the Board member's loyalty is only to the Trust, with no regard to the people who fund them. That seems wrong. No taxation without representation is a principle we think the board should reflect on.
Looking at governance more widely it seems the Board member elected by the Chase Ward had not attended meetings for almost three years, and although that is a breach of the guidlelines in the MHT's Governance handbook, the Trust did nothing about it.
Unlike his predecessor, the Board member elected for Guarlford has not attended any Parish Council meetings in a liaison role.
The Chairman of the MHT has made it clear that, in his view, when granting easements, the MHT cannot consider the impact of their decisions on adjoining land. So, for example, it appeared that the MHT was negotiating with a developer, threatening to damage the beautiful gateway to Malvern, which another body, the Malvern Town Council, wanted to protect.
We wonder what the Charity Commission Scheme document might say about such matters.
The public can attend most meetings of the Trust, but generally questions have to be submitted in writing at least three days before the meeting. The Trust seem inclined on occasion to read out the questions and give prepared answers without allowing the public a right of reply.
We get the impression, rightly or wrongly, that the Board of the MHT don't consider themselves accountable to the public in any way.
Timeliness of minutes
The Trust are dutiful in making minutes available on the Trust website, but often not until immediately before the next meeting.
We suggest the Charity Commission Scheme ought to require draft minutes to be placed on the Trust's website within 4 weeks, as the government mandates for Parish Councils.
Cash versus conservation
Certain Board members now seem to be taking the view that some detriment to the Malvern Hills is acceptable if the price is right, thinking that the Charity Commission guidance empowers the MHT to override the Malvern Hills Act 1995 and make 'Cash King'.
The MHT think this is permitted by Charity Commission guidance document:
It's your decision: charity trustees and decision making
But to us the situation is less clear. Another interpretation is that the prime directives of the Malvern Hills Acts are more important.
Strangely if you type 'complaints' into the search box of the Malvern Hills Trust you will get no results. However you will find a link to the Complaints Procedure at the bottom of the Contact Us page.
The Complaints Procedure does not use the word Ombudsman to whom one can go if not satisfied with the Board's response, although there is an inference that this is the Charity Commission. Though if you go to the Charity Commission website it appears they won't want to get involved unless the complaint is very serious.
So we suggest that the role of an Obudsman needs to be defined in the Charity Commission Scheme.
Do let the Malvern Hills Trust know if you have any concerns about the Charity Commission Scheme.
St Ann's Well
Recently renovated at a cost of about £200,000
Last updated 28th August 2019