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Changes afoot at the Malvern Hills Trust
What's Next - New Board and the Charity Commission
Scheme
 Contents
Summary
Public Consultation
Elections
Nominated Board members
Issues
Rebranding and new powers
History of the Charity Commission Scheme
Expenditure on the scheme
Points to ponder
Public Consultation
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.
Elections
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
Paul Bennett
Samantha Charles
Mark Dyde
Cynthia Palmer
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.
Richard Whitehead
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
Issues
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:
"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 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.
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 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.
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 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
Click to read the guidance often referred to as (CC27)
But it is not. 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.
St Ann's Well
Recently renovated at a cost of about £200,000
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