On proposed changes to the Malvern Hills Acts
A consultation on proposals to update the Trust's governance arrangements took place from the 22nd May to the 22nd July and has now closed.
We'd like to thank everyone who took part in our consultation on proposals to bring the Trust into the 21st century. Over the next few weeks, all the responses will be carefully considered by staff and trustees. An analysis of the submissions will be undertaken and the Board will make a decision on whether any amendments to the proposals will be made in response to the consultation. Any decisions made by the Board must be in the best interests of the charity and will be fed back into the Bill which is currently being drafted.
The full consultation responses will be made available to the public in due course.
Thank you again for taking the time to complete the consultation questionnaire and share your views.
Below are some frequently asked questions about the proposals and we've provided some simple facts in 'myth-busters'.
1. Why are you proposing to make changes to the Malvern Hills Acts? Is the organisation fit for the future?
The day-to-day work of the charity is being hampered by the outdated Malvern Hills Acts - the governing documents of the organisation. The Trust needs to fundamentally revise its governing Acts in order to be able to operate effectively in the 21st century.
The Acts are very out of date and it is becoming increasingly difficult to administer the Trust and to care for the Hills and Commons in an effective and efficient way. Considerable staff time is being spent interpreting the Acts, resulting in inefficient decision-making and the charity's funds being expended on legal advice when the Acts are unclear.
The Trust’s governing Acts date back to the Commissioners Clauses Act of 1847, and the 1884 Malvern Hills Act which were written in a time very different to today.
Some of the key reasons for the proposed changes are:
- The Acts refer to many statutory provisions which are no longer in force
- The Victorian language is difficult to interpret
- Because there are five Acts, it can be challenging to find all the relevant provisions on a particular topic and sometimes there are contradictions between them
- The Trust needs to be able to deal with practical situations which were not envisaged when the Acts were passed
- Some of the language used in the Acts has no clear meaning (for example “natural aspect”)
- Some sections of the Acts no longer serve any purpose
- The Trust needs a number of additional powers to enable it to operate more effectively
- The Trust cannot comply with the current recommendations for good governance of charities. For example, the Board of 29, which exceeds the number of staff, is too big for effective decision making and there is no way of ensuring its members have the necessary skills, experience and knowledge (see Charity Governance Code)
The Trust proposes to amalgamate all of the governing provisions within a single Act to make it easier to understand.
2. Why is the Trust proposing to promote a Private Bill in Parliament?
The Trust is quite unusual in that it is a charity governed by statute. The organisation was established through an Act of Parliament in 1884 and the only way it can change its governing Acts is through this Parliamentary process. This is not unprecedented as since the first Act in 1884 there have been four subsequent Acts in 1909, 1924, 1930 and 1995.
The Trust has explored all avenues and making the changes by Private Bill is the only option available.
Private Bills go through a full Parliamentary process but only change the law as it applies to a specific organisation or location, as distinct from public bills which apply generally. They should not be confused with a ‘Private Members Bill’ which is usually public bill introduced by an MP who is not a government minister.
3. Why are we a charity?
The Trust's objects (expressed as 'duties' in the Acts) have always been entirely charitable. In 1984, the Trust formally registered with the Charity Commission (charity number 515804) when it became compulsory for all charities to do so.
4. Is MHT a public body?
No. It is a charity governed by statute. There is no single definition of a public body for all legal purposes.
The Acts do not refer to the Trust as a 'public body' or 'public authority' but, like some other charities, the Trust does exercise certain 'public functions'.
5. Will the new Act change the Trust’s charitable purposes?
No, the essential objects of the charity - to look after the land and keep it open, unenclosed and unbuilt on for the recreation of the public - will remain the same but they will be expressed in more modern language.
For example, the reference to “natural aspect" in the 1924 Act is not defined in the Act. There has been limited discussion in case law but this has not provided a clear definition. It is vital that this essential objective is properly articulated so that it is clear that it applies to protecting all aspects of the natural landscape including biodiversity, geology, archaeological, features etc.
6. Why does MHT need a General Power?
Currently, the Trust can only do the things that are specified in the Acts. This makes future-proofing the Trust impossible as, in the same way as the Victorians could not anticipate the technological advancements that are now part of our everyday lives, for example the motor car or drones, we cannot anticipate every new development that may impact the Trust. Without this General Power, even minor changes will require the Trust to seek a new power from Parliament, which is expensive, time consuming and inefficient.
It is not unusual for charities to have a General Power to enable them to deal with such eventualities. Other charities with a General Power include the National Trust.
7. What safeguards will stop the misuse of a General Power?
The General Power would only be used to further the charity’s work in the pursuance of its charitable objectives.
If trustees acted in breach of this obligation they would be acting outside their remit and could be personally liable for the consequences.
Any complaint about abuse of the General Power could be referred to the Trust’s regulatory body, The Charity Commission.
The General Power would not change anything in the way that the sale of land and the granting of easements were dealt with. These matters are specifically covered elsewhere in the legislation, so the General Power would not apply to them.
8. Will the Act enable the Trust to sell their land?
There will be no change. With very limited exceptions the Trust cannot sell land it owns over which the public have access.
The Trust can sell land which is used as offices or working & storage space for example our offices at Manor House. This also will not change.
9. Will the Act give more power to the Trust to grant easements?
There will be no change. The powers to grant easements are laid out in the 1930 Malvern Hills Act as updated by the 1995 Malvern Hills Act.
The bodies which decide whether planning permission is granted for any new building or development are Malvern Hills District Council and Herefordshire Council. Malvern Hills Trust cannot make decisions relating to planning matters.
10. Will the new Act change who pays the Levy?
No, we will not change the boundary of Levy paying areas. Neither the Charity Commission nor the Department of Culture Media and Sport, whose approval is essential, will support changes to the current boundaries.
11. Will the General Power enable the Trust to increase the levy amount?
A proposal to include a general power will not be able to be used to increase the levy.
12. Will Commoners rights be protected?
Yes, existing Commoners rights are protected by separate legislation and will not be affected.
13. Will open access to the Hills and Commons be maintained?
Yes, we will be maintaining all existing access rights. Securing the grazed commons will not prevent public access but will ensure that the grazing continues in line with our purposes which help to maintain the open and accessible nature of the Trust's land.
14. Why does the Trust want to reduce the size of the Board?
The Charity Governance Code suggests a board of at least five but no more than twelve trustees. Research has shown that the optimum number for good decision making is seven, with the efficiency of the Board decreasing by 10% with every additional member. The current Acts provide for 29 trustees (though we only have 23 as of June 2024). There are currently more Trustees than employees and this places a considerable administrative burden on the staff.
15. What other changes will be made to the way the Board is appointed?
Those who pay the levy will still elect some of the trustees, and as now, people from the local area will be able to choose to stand for election.
Although it is proposed that the Board size will be reduced, the proportion of elected Board members will increase from 38% of trustees under the current arrangements to 50% with the proposed governance changes.
Increasing Board diversity is an important benefit of the proposed changes. The Trust, like other charities, needs to ensure the Board has a diverse range of trustees with the right skills and background to effectively manage the Trust. For example, in October 2023 the average age of Board members was 71 and only 6 of them were women. The governance changes will enable a wide range of people to apply to become a trustee and be selected for their relevant skills and background.
16. Will the levy payers be represented on the Board?
Elected trustees are not and have never been representatives of levy payers. Levy payers have the opportunity to vote for the candidates they believe have the skills and experience to enable the Trust to achieve its charitable objectives. Trustees, once elected, must act exclusively in the best interests of the charity - as is the case with all other charity trustees. This arrangement will not change with the proposals as explained above.
17. Will the Bill remove the right to levy payers to elect trustees?
No. Those who currently have the right to vote will still be able to do so.
18. Under the current proposals, could newly appointed trustees be from anywhere in the world?
Newly appointed trustees would be selected on the basis of their skills rather than their location. In practice, however, a candidate's association with the area would be a relevant criterion in the selection process.
19. Will the proposals mean that decisions would be made in private?
No. All meetings at which decisions will be made will remain open to the public unless confidential or legal matters are to be discussed. This is currently the case and there will be no change.
20. What will this cost?
The Charity Commission has authorised the Trust to spend £306K on legal costs and fees associated with the Parliamentary Process, but there will be other costs for example staff time in supporting the process, keeping the public informed and the costs of a public consultation. The Trust proposes to spread some of the cost by taking a loan repayable over 25 years.
The benefits of updating the charity’s governance, particularly financial benefits, may not be immediately obvious. However, enabling the charity to carry out its work more efficiently will be a better use of its resources. The ability to diversify the Trust’s income streams will also put the charity in a much more stable and secure financial position for the future and reduce the reliance on levy payers.
21. How will proposed changes affect fundraising?
At the moment, the Trust powers to raise funds are very limited. It needs to be able to diversify its income streams, and raise funds in the same way as other modern charities. For example, one of the proposals under consideration is to set up a membership organisation. This would help to raise funds and engage members of the public who want to support the Trust but may live outside the levy paying area.
22. Why is the Private Bill being rushed through?
The Private Bill is not being 'rushed through'. In 2014 the Trust began making plans to update its governing Acts. In 2019 we ran a public consultation with a view to making the necessary changes via a scheme under the auspices of the Charity Act.
Our current proposals include amendments as a result of the 2019 consultation responses.
The amendments made to Malvern Hills District Council wards in January 2023 provided a spur to make sure the Trust lodged a Bill as soon as possible because the current council wards no longer confirm to the wording in the Acts.
There is only one date in the year that a Bill can be lodged – 27 November. The Bill will probably take several years to go through the various stages in Parliament and it would be helpful for the new legislation to be in place before the next Trust elections.
All meetings where decisions have been made have been open to the public.
23. What confidence can we have in the Board trustees appointed in November 2023? Do they understand the issues?
All trustees have attended training and devoted a considerable amount of time and effort to ensuring they are fully appraised of the problems with the Malvern Hills Act 1884 - 1995 and current proposals. Trustees have had opportunities to ask questions and discuss any issues.
24. Have you already decided what proposals you're going to put forward?
No - the purpose of the consultation is to help us shape the proposals that will be in the Bill. The proposals are for discussion, they have not been finalised.
We hope the public and other stakeholders will respond to our consultation and comment on the changes being put forward, whether they agree with them, or if they have identified any issues or unforeseen consequences. We will consider all of the comments and review the proposals in light of them.
25. Will I get to have my say on the proposed changes?
Yes, a public consultation was held from the 22nd May to the 22nd July and has now closed.
We'd like to thank everyone who took part in our consultation on proposals to bring the Trust into the 21st century. Over the next few weeks, all the responses will be carefully considered by staff and trustees. An analysis of the submissions will be undertaken and the Board will make a decision on whether any amendments to the proposals will be made in response to the consultation. Any decisions made by the Board must be in the best interests of the charity and will be fed back into the Bill which is currently being drafted.
The full consultation responses will be made available to the public in due course.
Following the submission of the Bill to Parliament, it will follow normal parliamentary procedure.
26. How can I find out more?
Background information on the need for change and the detailed proposals can be found on our website www.malvernhills.org.uk/governance-changes