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Changes afoot at the Malvern Hills Trust
What's Next - New Board and the Charity Commission Scheme
Nominated Board members
The Public Consultation about proposed changes to the powers of the Malvern Hills Conservators closed at midnight on 13th October 2019, and the Trust are saying that it could take up to 4 months to analyse the results and ramifications, and present a full report to the Board, for example, in February 2020.
It is hoped all the results of the consultation will be made available to both the public and the Charity Commission before then, but there is currently no indication whether or not the Trust are willing to share the information they have gathered from the six week Public Consultation.
It is likely that the public will not agree with all of the proposals, and additional clarification and safeguards may need to be built into the final document. However there is little the public can now do to influence the proposals until the Trust indicate how they plan to proceed.
The new Board of Trustees established on 1st November 2019 will meet for the first time at the next full meeting of the Board on 14th November.
Nominations for the 11 elected seats closed on 4th October 2019, and voting took place for the contested seats on 31st October 2019. Full details of the results can be found on the official Malvern Hills Trust website.
In 7 of the 11 seats the nominated candidate was unopposed. These were,
Steve Braim Colwall (re-elected)
Helen Stace Colwall (re-elected)
Chris Rouse Mathon (re-elected)
David Fellows Guarlford
Richard Bartholomew Link ward (re-elected)
Charles Penn West Ward (re-elected)
David Core Pickersleigh ward, replacing Dr Peter Forster
In four wards the seats were contested.
Chase ward candidates
Graeme Crisp (lives in the ward); 909 votes ELECTED
David Street (was Conservator for Guarlford); 158 votes
Dyson Perrins ward candidates
Trevor Parsons (address in West Malvern); 176 votes ELECTED
Tim Lawrence (address witheld); 162 votes
Priory ward candidates
John Watts (lives in Priory ward); 491 votes ELECTED
Pete Watson (was Conservator for Priory); 182 votes
Wells ward candidates
Richard Fowler of Hall Green; 390 votes ELECTED
Peter Schofield (address witheld); 78 votes
Ian Wells (address in West Malvern); 162 votes
Election of these four candidates should send a clear message to the Malvern Hills Trust that people in Malvern are not happy with how the Trust has behaved over the last few years; above all people are demanding less wasteful expenditure on legal advice and more transparency.
Nominated board members
In addition to the elected members, 18 members are nominated by the MHDC, WCC, HCC and the Church Commissioners. The Trust has indicated that it would prefer the present board members to continue in order not to interrupt the progress of their Charity Commission Scheme.
However the two seats nominated by Herefordshire County Council are currently vacant and Chris O'Donnell and Roger Hall Jones were not re-elected as MHDC councillors, so there will be at least four new nominated members on the board.
Update - the minutes of the ordinary MHDC meeting on 24th September 2019 record 7 members nominated to the Board of the Malvern Hills Trust:
Mick Davies exisiting Board member, and current Chair of the MHT
Sarah Rouse existing Board member and current Vice Chair of the MHT
John Michael exisiting Board member
The 8th person nominated is believed to have stood down due to pressure of other work and another candidate was proposed and agreed at the next meeting of the MHDC on 29th October 2019.
So the total number of new Trustees on the board are 6 elected, 5 nominated by MHDC, 1 from WCC Castlemorton Common (Chris Atkins replacing Angus Golightly), and 2 from Hereford County Council making 14 new Trustees of the 29.
The following nominated Board members are continuing in post as Trustees:
Prof John Raine WCC
Lucy Hodgson WCC
Tom Yapp WCC Parish Newland
Martin Cordey WCC Parish Powick
Gwyneth Reece Colwall Parish Council
David Baldwin Mathon Parish Council
David Bryer Church Commissioners
The Friends of the Commons of Malvern Residents Association has a number of concerns about the direction the Malvern Hills Trust has been taking in recent months including issues of transparency, accountability, and the expenditure of disproportionately large sums of money with legal firms rather than on protecting the Malvern Hills and commons. Expect these issues to be raised with the Board in future months.
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 has recently conducted 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 have been a genuine and appropriate consultation exercise to take into account the views of the charity's stakeholders.
The proposals of the Trust have become much clearer following publication of the Consultation Document on 2nd September 2019, but it is clear the plans are not fully worked through, and some safeguards will be needed to prevent abuse.
The public's comments on the Consultation Document will be passed back to the Board of the Malvern Hills Conservators, who will have the opportunity to amend their proposals before sending them to the Charity Commission.
Residents need to remain vigilant, ready to review and if necessary challenge any new proposals.
About the Conservators
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. However the rumoured cost is £30,000.
In 2018 the Board decided to seek new powers and a significant reduction in the number of Board members through a Charity Commission Scheme (CCS). The MHT has been paying a firm of legal advisers Baites Wells Braithwaite, otherwise known as BWB, a lot of money to draw up a draft 'Scheme'. The 'Scheme' will need to be approved by the Charity Commission, and the Department of Culture Media and Sport, and finally rubber stamped by Parliament, if it were to go ahead.
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 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 is contentious. We don't think that is appropriate for such a public body, and suggest the rationale for that will need to be 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 Malvern Hills Trust had originally hoped to have the new legislation approved before the next elections to the Board on 31st October 2019, but with BREXIT occupying parliamentary time, uncertainy about how much the scheme will cost, and the need to rework the scheme in the light of public comments, it is difficult to forecast when and if the scheme will be approved.
We did not see 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 legal advisers BWB. However we now have the Consultation Document which shows which provisions of the Acts no longer apply and in broad terms what new powers are sought. Here are some points the public might like to think about.
Reduction in number of Trustees
It seems sensible that the number of Trustees should be reduced but not, in our opinion, so drastically as the Trust proposes which would weaken public accountabilty. The Trust is a public body funded by local taxation and so the majority of Trustees should be elected. The Consultation Document does not explain how the workload of the present Trustees could be handled by a lesser number.
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 elected Malvern Hills District Councillors nominated to the Board. We also thought elected 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, in his opinion, the Board member's loyalty is only to the Trust, with no regard to the people who fund them or the Town. We think he is wrong. No taxation without representation is a principle we think the Board should reflect on. Precept payers are, in effect, members of the charity and should have a voice.
Looking at governance more widely it seems the Board member elected to the Chase Ward attended few if any meetings, 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.
In the proposals put forward for Public Consultation the Trust is proposing that the number of Trustees should be drastically reduced from 29 as mandated in the 1924 Malvern Hills Act, to a maximum of 12 of which only 6 would be elected. The present 11 precept paying areas could be merged into a single area making it very difficult for candidates to make themselves personally known to voters. Democracy would suffer.
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 chairman has on occasion read out the questions and give prepared answers without allowing the public a right of reply. However the Trust has recently agreed, on a trial basis, to allow members of the public to make a short statement, and this is to be welcomed.
We get the impression, rightly or wrongly, that some members of the Malvern Hills Trust don't really consider themselves accountable to the public in any way.
This view is confirmed in section 5, page 26 of the Consultation Document where it is proposed that in future the public should be excluded from all committee meetings. Democracy would suffer and residents should make their opinion heard.
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, or even the Board Members, ought to require draft minutes to be placed on the Trust's website within 4 weeks, as the government mandates for Parish Councils. Papers need to be available to Board members well before meetings so that they can respond to actions and have time to prepare.
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'.
Thesed people seem to think this is mandated by the Charity Commission guidance document:
It's your decision: charity trustees and decision making
But it is not. 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 extremely serious.
So we suggest that the role of an Obudsman needs to be defined in the Charity Commission Scheme.
The Consultation Document indicates many new powers are being sought including for example the power to set up a membership organisation (clause 7); a general power to do anything that is lawful (clause 8); own and manage livestock (clause 13, page 44); and trade and acquire subsidiaries (clause 6 g. h. on page 29).
In some cases these are powers the Trust thinks might be useful in future years but the details have yet to be worked out. For example there currently seem to be no plans for a membership organisation or ideas about how that would fit with council tax payers who are charged the levy.
If such provisions are added, safeguards must be included to ensure these powers are not abused.
St Ann's Well
Recently renovated at a cost of about £200,000
Last updated 1st November 2019