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Changes afoot at the Malvern Hills Trust
The Public Consultation - 'Have Your Say'
 Contents
What you need to do
Overview
Background
The Charity Commission Scheme
Expenditure on the scheme
Timetable
Points to ponder
Please take this opportunity of letting the Malvern Hills
Trustees know what you think about their proposals to update and extend
their powers, currently specified in the Malvern Hills Acts.
Submissions close at
midnight on Sunday 13th October 2019
Main Consultation webpage:
https://www.malvernhills.org.uk/public-consultation
Summary of Proposals
https://www.malvernhills.org.uk/public-consultation/ccs-summary
There is a link at the bottom of the 'Summary of
Proposals' that will take you directly to the official Consultation
Response Questionnaire, hosted by Worcestershire County Council.
The Public Consultation period has only a few more days
left to run and so far we hear only of the order of 100 people, of the
thirty thousand or so in Malvern, have submitted questionnaires.
So, if you have not already done so, it is very important that you prioritise
reading and commenting on the Consultation Document which
can be found on the
Malvern Hills Trust website.
The Consultation Document is quite long but there are a
lot of pictures, and you can skip read through the document to find those
sections you wish to comment on.
The link to the on-line questionnaire is
on the very last page of the Consultation Document. You need to click the
word 'here' which is in very tiny writing, so be careful not to miss it.
Alternatively you can click on the link on the 'Summary of Proposals' page
mentioned above.
The
questionnaire provides you with multichoice options and free text boxes so
you can expand on your views; it is easy but time consuming to complete. There are sections on a number of topics so
at the start tick the ones relevant to you.
If you click the SAVE button, at the bottom of the
questionnaire, part way through, you will be sent a link which can then be
saved as a favourite in your browser enabling you to go back, amend, and
finally submit your views. So you don't have to fill in the questionnaire
all in one go.
In fact it's a good idea to save your work as you go
along in case you get a 'something went wrong' message but do please remember
finally to click SUBMIT once you are happy with your answers.
Click for copy of the link to the MHT questionnaire
The deadline for on-line responses is
midnight on 13th October 2019.
Paper copies of the Consultation Document and
questionnaires can still be obtained from the Malvern Hills Trust office opposite
Malvern Theatres in Grange Road.
Paper questionnaires must be delivered to the Malvern
Hills Trust Office by 4pm on Friday 11th October 2019.
This may be your one and only chance to
comment on the proposals before they are rubber stamped by the Charity
Commission and Government.
Please do tell your
friends and colleagues about the Public Consultation and invite them to
complete the questionnaire - it is amazing how few people know about the
Consultation despite the publicity.
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 is 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 most important that residents of Malvern, and
surrounding villages, 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 £109,000 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 offering for public comment a
draft prepared by the Secretary outlining the proposals which might need
amendment in the light of feedback from the public.
HOW DO YOU COMMENT
See What you need to do
section above.
The Public Consultation documents have been placed on the
Malvern Hills Trust web site. There is a summary of the proposals, a table
listing the provisions of the Acts, which indicates many of the provisions
are no longer relevant, and a 94 page Consultation Document setting out the
proposed changes including new powers sought.
At the end of the Consultation Document is an important
little link that takes you to a questionnaire enabling you to
comment. The 'snap survey' platform has been set up by Worcestershire County
Council who will collate responses and pass them to the Trust.
After completing the questionnaire you will be asked to
enter your name for audit purposes, but we are told your submission will be
anonymous - unless you tick the box saying you would like to be contacted by
the Trust.
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.
We think it is important you have your say.
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.
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 but will be offering drop in
sessions where the public can view the documents and ask questions. The
volume of the final 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 proposals 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 on 31st October 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
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.
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 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. 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 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 being 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 veruy difficult
for candidates to make themselves personally known to voters. Democracy
would suffer.
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 really consider themselves accountable to the public in any way.
The Trust are now proposing that in future the public
should be excluded from Committee meetings. Democracy would suffer.
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 extremely serious.
So we suggest that the role of an Obudsman needs to be
defined in the Charity Commission Scheme.
Other issues
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.
Do let the Malvern Hills Trust know if you have
any concerns about
the Charity Commission Scheme by completing the on-line questionnaire before
13th October 2019
St Ann's Well
Recently renovated at a cost of about £200,000
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