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Changes afoot at the Malvern Hills Trust

The Public Consultation - 'Have Your Say'

Manor House, the offices of the Malvern Hills TrustContents

Overview

Background

The Charity Commission Scheme

Expenditure on the scheme

Timetable

Points to ponder

 


Overview

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.

 

Background

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.

Malvern Hills Conservators sign

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.

Malvern Hills Trust sign

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.

The Charity Commission Scheme

Background

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:

"The Malvern Hills Trust - formerly the Conservators - has been given the green light from central government to go ahead with a scheme to reform its governing structure.

The body, which manages the Malvern Hills and surrounding commons, has been looking for the past few years at ways of bringing its governance up to date.

And last month, Board members, staff and the Trust's solicitors met representatives of the Charity Commission and the Department of Culture, Media and Sport (DCMS) to find out their views.

'The meeting was very positive. We talked through all the proposals and options that we have been discussing, and the outcome is now that we have a green light from DCMS, as well as from the Charity Commission, to proceed with a scheme' says a report from the Trust's working party.

The report says the priority now is to finalise the details of its proposals - with the major issues still to be decided, including how many members the new Board should have.

At the moment, the Board has 29 members, eleven elected directly by residents of parishes and wards that pay the precept, and the rest nominated by local authorities and the Church Commissioners. But the reforms aim at bringing the total number down to between 9 and 14.

The report is now recommending that, whatever the size of the new board, there should be a 50-50 split between elected and appointed members.

And it also says that the areas in which voters can elect representatives should be equalised: at the moment, Mathon, which has 241 registered votes, elects one member, as does Malvern Link, with nearly 5,000 voters.

They recommend consolidating the parishes and wards, and their report offers six different options, with between four and eight electoral areas.

And they also recommend that the Board creates an Independent Selection Panel for non-elected members, taking over that duty from the local authorities and Church Commissioners.

The working party's report is due to be debated at a meeting of the Trust's working party on Thursday."

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:

MATHON PARISH COUNCIL

ANNUAL PARISH MEETING

7.00 pm - 2nd May 2018

Held at Mathon Parish Hall

The Chairman welcomed everyone to the meeting and introduced Mr Duncan Bridges, CEO of Malvern Hills Trust, and Simon Freeman, the Chairman of the Trust.

They had been invited to give a short presentation on proposals being put forward for the future size, shape and governance of the Trust.

Malvern Hills Conservators was established by Act of Parliament in 1884. It was registered as a Charity in 1984, and adopted the working name of 'Malvern Hills Trust' in April 2017.

The Trust now needed to update its administrative powers to facilitate better management and bring the governance into line with current good practice.

However, as the Charity is governed by statute, changes can only be made by another Act of Parliament, or a Scheme under Section 73 of the Charities Act 2011. 

Under the Scheme proposals, out of date provisions will be repealed, and new powers granted – e.g.  providing additional fundraising options to enable better land management, changes in the way Board members are appointed/elected – creating a smaller Board of 12. 

The key additional fundraising powers would allow the Trust to set up a membership organisation and a trading subsidiary.  Key new land management powers would enable MHT to purchase and look after its own livestock, allow temporary fenced areas for livestock, and make the grazed commons stockproof, thus encouraging property owners with commoners rights to graze their animals safely.

Grazing is the key management tool to keep down the growth of scrub and trees.  The current Board is made up of 29 Trustees: 11 elected by 10 wards and parishes, 8 Malvern Hills District Councillors, and 10 by appointment.   The proposal for improved governance arrangements would be to have a smaller board of 12 Trustees made up of 6 elected and 6 appointed Trustees with Board members to serve a maximum of 2 full consecutive terms (each of 4 years).

Over the last 4 years the Board has considered the case for change and the available options and agreed a set of proposals.

The Charity Commission agreed in principle in 2016 to settle a Scheme for MHT.  However, there has to be a full public consultation and an opportunity for all stakeholders (such as Mathon Parish Council) and the public to have their say. 

All responses will be carefully considered and any amendments made before the final draft of the Scheme is prepared for the Charity Commission and Dept of Culture Media and Sport. It will then be laid before Parliament.

On the 14th May Guarlford Parish Council was briefed by the Secretary of the Malvern Hills Trust. To quote from their minutes:

Malvern Hills Trust Report by Susan Satchell Secretary to the MHT Board.

 1. Mrs Satchell gave a Power Point presentation entitled “Essential changes for the 21st Century” with the assistance of Mr Charles Penn, a Trustee and Vice Chairman of the Governance Committee of MHT.  She will forward the Power Point to the Clerk to circulate. (Action Clerk)

2. The main purpose of the current initiative was to consult on modernising the corporate structure and ethos of MHT. Five Acts of Parliament governed how the Malvern Hills were to be managed.  One of the principal objects is to have new legislation in the form of a Statutory Instrument which would consolidate the existing Acts and make them more accessible and easier to navigate.

3. Facilitation of better management and bringing governance of MHT up to date including a Board of 12 members, as opposed to the current unwieldy 29, were also ambitions of the initiative. In addition there is a proposal to set up a membership organisation and a trading subsidiary. But the core values of MHT will remain.

4. At present MHT manages 1200 hectares of common land under its jurisdiction.  Literally hundreds of people have grazing rights on the Malvern Hills but only 3 currently exercise those rights. It was a matter of simple economics. One of the key additional powers that MHT will seek in the Statutory Instrument is that of land management.

5. Mr Penn then addressed the meeting in more detail about the proposed changes to the governance arrangements. Of the 29 trustees 11 are elected. Some small wards including Guarlford have one seat on the Board whereas some numerically much larger wards also have one seat. In addition there are some anomalies for example 17 members of the Board are currently nominated by local authorities – was that right?

6. The proposal is to have a maximum of 12 Trustees of whom 6 will be appointed and 6 elected. There will be a limit of two terms.

7.  Questions were then taken. The Chairman stressed to Mrs Satchell and Mr Penn that the Parish Council had grave concerns at the potential for MHT to facilitate inappropriate development by the granting of easements over verges and other areas of land owned by them to owners of adjacent land and expressed the hope that when considering easement requests MHT would act responsibly.

8. Mrs Satchell confirmed in reply to the Chairman that MHT do have an easement policy and that the Board works closely with AONB on request made to them. MHT are obliged to make any decision in the best interests of the charity.

9. Mr Penn confirmed that Trustees are not mandated - they are not representing the interests of the ward which elected them. However, it was the intention to allocate a Board member to liaise with a particular Parish Council.

10. In response to Cllr Simpson Mrs Satchell said that any membership organisation of MHT would not have voting rights (tail wagging the dog). The cost of this modernising exercise was estimated to be of the order of £100,000 and MHT had reserves to cover it. The monies will not be taken from the Precept.

11. A lot of work would be necessary to give effect to what MHT wanted to do.  It would be necessary to go through a quasi-Parliamentary process. She was very pleased however that the Charity Commission had agreed to support MHT on this matter.

12.    She agreed with the Chairman that not many people were aware that MHT is in fact a Charity. The Department of Media Culture and Sport had ruled out the possibility of widening the levy paying area.

13. There will be a public consultation which Mrs Satchell anticipated would take place later in 2018. The hope was that the legislation would be passed by the time of the next MHT elections in November 2019.

14. The Chairman thanked Mrs Satchell and Mr Penn for their very informative talk about the future plans for MHT. 

 

Click to open the presentation provided by the MHT to the GPC for circulation (pdf file, 1.3 MB)

 

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.

 

Expenditure on the Scheme

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.

 

Timetable

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.

 

Points to ponder

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'.

Panorama of Guarlford Road

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.

 

Representation

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.

 

Public questions

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

Click to read the guidance often referred to as (CC27)

But to us the situation is less clear. Another interpretation is that the prime directives of the Malvern Hills Acts are more important.

 

Complaints

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

St Ann's Well

Recently renovated at a cost of about £200,000

The Malvern Hills logo

 

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