Malvern Hills Bill [HL]
Wednesday 4th June 2025
(3 days, 19 hours ago)
Lords ChamberMalvern Hills Bill [HL] 2024-26 Read Hansard Text
Lord Faulkner of Worcester (Lab)
My Lords, I should express my gratitude to the Malvern Hills Trust for inviting me to present the Bill on its behalf.
I am sure that none of your Lordships needs me to describe the iconic beauty of the Malvern Hills. I now live in the city of Worcester and for much of my life I have been in Malvern itself or in the villages close by. The hills stretch for about eight miles from end to end across the borders of Herefordshire and Worcestershire. The highest point is the Worcestershire Beacon at 1,394 feet. The hills are designated as a national landscape, formerly known as an area of outstanding natural beauty. Some 62% of the hills are a site of special scientific interest, and there are three scheduled ancient monuments, including the remains of trenches on the Herefordshire Beacon, or British Camp, which was used by Caratacus in his last stand against the Romans. The hills are home to a rich variety of wildlife and protected habitats. They attract very significant numbers of visitors who take advantage of open access, including a network of footpaths and bridleways.
The promoters of the Bill are the Malvern Hills Trust. That is its working name; its statutory name is the Malvern Hills Conservators. It is the job of the trust to protect and manage the hills for the benefit of the public. I should say that if one visits the hills, it is evident that the trust performs its task very well indeed. The trust was established by an Act of Parliament in 1884 and since then, four further local Acts have amended and supplemented each other. The most recent Act was passed in 1995.
One of the purposes of the Bill before your Lordships is to consolidate those Acts. This would make good what the late Lord Colville of Culross said when introducing the Bill for the 1995 Act at Second Reading on 8 March 1993. I hope it is not out of order if I refer to my pleasure at seeing the noble Viscount, Lord Colville of Culross, on the Woolsack. The late Lord Colville said in 1993:
“I have great sympathy with one of the petitioners, who would like to see this private legislation consolidated. I am sure that everybody would”.—[Official Report, 8/3/1993; col. 869.]
The area that falls within the management of the trust consists of large parts of the hills themselves and other areas of open land comprising roadside verges and commons. The area is illustrated by a map which has been deposited with the Bill. The trust owns most, but not all, of the land within its management. About 90% of it is registered common land and virtually all of it open space, accessible by the public on foot and on horseback.
Lord Colville also remarked on the ever-increasing pressures on the hills as they become more and more popular. The pressures arising from that popularity continue to increase, and the need for the hills to be conserved and managed for the future public good remains as strong as ever.
The trust is in a somewhat unusual position in that it has the power to issue a levy on the residents of certain parishes in the local area. I will come on to that in more detail later, particularly as it is one of the topics that has been raised in the instruction tabled by the noble Earl, Lord Atlee.
It is worth drawing your Lordships’ attention to the fact that the trust is a charity. As such, the trust has to comply with charity law and take heed of guidance issued by the Charity Commission. As your Lordships are aware, the purpose of a Second Reading is to consider the Bill generally and approve the principle. In due course, a Select Committee will be appointed to examine the Bill and the 50 petitions that have been deposited against it. The trust has looked through the petitions and will respond to all the petitioners.
Common themes have been identified in the petitions, and I will touch on some of them today. Part 2 of the Bill has drawn more attention from petitioners than any other. It would make significant changes to the composition of the board of trustees, which has not changed significantly in 100 years. The trust considers that its board needs to be smaller, and it needs to include trustees who possess the skills necessary to manage an area of open space as significant as the Malvern Hills, in line with good governance of other modern statutory bodies and Charity Commission guidance. The Bill would achieve that.
Currently, the trust comprises 29 trustees: 11 are directly elected by the residents of the levy-paying parishes; 18 are nominated by various local authorities and, in the case of one trustee, by the Church Commissioners. The Bill proposes to reduce the overall number of trustees to 12, with six elected trustees and six appointed trustees. It has been suggested that the Bill would dilute the proportion of elected trustees. The reality is that, if the Bill is enacted in its current form, the proportion of elected trustees will increase from 38% to 50%.
Another point that has been raised by petitioners is about the changes that are proposed to the way elections will work. Currently, the electors of three parishes and of some former wards of a long-abolished urban district council elect one or more trustees for their individual area. The Bill proposes one electoral area, combining all the areas which currently elect trustees, so each one of the six elected trustees would be voted for by all the electors, rather than each trustee being chosen by the electors of an individual parish or ward.
A complaint that has been made is that this will mean that parishes lose their representation on the board, but charity trustees are not representatives of the interests of those who appoint them. The trust’s objects are to preserve and manage the hills for the benefit of the public as a whole. They are not to look after the interests of any particular area.
The trust and I are grateful to the noble Earl, Lord Attlee, for giving us the opportunity to comment on a draft of his instruction, which touches on the trust’s constitution. I can say now that I do not intend to oppose it. I understand that the noble Earl’s concerns may, to some extent, overlap with those of the board as regards the potential for single-issue candidates dominating the elected trustees. I am sure that the Select Committee will look into this in detail, but the position of the trust is that the Bill strikes the right balance between elected and appointed trustees.
Part 3 of the Bill is about finance, and includes Clause 33, which deals with the levy, the subject of the other limb of the noble Earl’s instruction. The first point is that Clause 33 makes no changes to the current position. The parishes which are subject to the levy would not change; the amount that is charged at the time the Bill attains Royal Assent would not change; the way in which the levy is collected would not change; and the statutory limitation on annual increases to the levy would not change. The instruction would require the Select Committee to consider the area within which the levy is applied. I am sure that this would be a matter which the Select Committee would wish to examine in any event. I say again that I do not intend to oppose the instruction.
At the request of the trust, the noble Earl, Lord Attlee, included some wording in his instruction about a restriction on the trust on what it can promote in the Bill in relation to the levy. By law, the trust has to obtain the consent of the Charity Commissioners to incur expenditure on the promotion of the Bill. As a condition of that consent, the trust must not incur expenditure in promoting any material changes to the levying provisions, including changes to the levy-paying area. The trust is content, of course, with the levy clause as contained in the Bill, and it would seek to persuade the Select Committee of its merits.
Part 4 deals with public access to and management of the hills. It is worth referring back to Clause 5 for context. Clause 6 sets out the objects of the trust, which are
“to protect, conserve and maintain the landscape, natural appearance, habitats, flora and fauna, geology and archaeology of the Malvern Hills”,
and to
“keep the Malvern Hills unbuilt on as open space for recreation and enjoyment of the public”.
Alongside Clauses 38 and 40, which respectively set out the statutory rights of the public to access the hills and impose a duty on the trust to keep the hills unenclosed, there remains very significant protection for the hills into the future.
I hope that your Lordships have no complaints about the way in which the trust manages the hills now or about the provisions of Part 4, which, in general terms, consolidate the existing local legislation, with very few changes. The most significant change in the Bill is a new power to fence common land to prevent animals straying from it. The Bill does not provide the trust with a charter to build on the hills or to install solar panels or wind turbines all over the hills, as some of the Bill’s detractors have, rather fancifully, suggested. It is quite the opposite.
The proposed instruction by the noble Baroness, Lady Coffey, asks that the Select Committee pays particular attention to the provisions which would impede or restrict public access. I strongly suspect that public access also will be of interest to the Select Committee, and I do not intend to oppose her instruction.
Part 5 restates in modern terms the trust’s power to make and enforce by-laws with one significant change—namely, a new power to issue fixed penalties. Part 6 deals with the trust’s power in relation to land, and again makes no significant changes.
Finally, I should mention Clause 83 in Part 7, which is a new general power for the trust, akin to general powers enjoyed by other statutory bodies and charities. It is important to note the inbuilt restrictions on the use of the power, which means that any fears about the trust bypassing the provisions I have mentioned about preserving the hills cannot become reality.
The proposed instruction of the noble Baroness, Lady Coffey, touches on the scope of the promoters’ powers. I am sure that, in any event, the Select Committee will take particular interest in Clause 83 and Clause 84, which introduces a number of miscellaneous powers, all of which can be exercised only to further the objects of the trust. The noble Baroness’s instruction is based on the instruction which was passed on Second Reading of the Bill which became the Malvern Hills Act 1995. Following in the footsteps of the previous Lord Colville, as mentioned earlier, I do not intend to oppose it.
I hope that what I have said is persuasive enough for your Lordships to allow the Bill to be given a Second Reading and for it to proceed to Committee. I beg to move.
Earl Attlee (Con)
My Lords, I am grateful to the noble Lord, Lord Faulkner of Worcester, for his usual expert introduction of the Bill today. The promoters would have been hard pushed to find a more suitable and capable Peer to move the Second Reading.
Assuming that your Lordships give the Bill a Second Reading, I will then move my Motion that it be an instruction to the Select Committee considering the Bill that it considers both the precept area and the electoral arrangements. This will not prevent the Select Committee considering, subject to the Standing Orders governing its procedures, any other matters it sees fit or the many petitions that have been deposited, and the noble Lord recognised that. I am indebted to him for agreeing in advance that he will not oppose my Motion. I gently point out to my noble friend Lady Coffey that the drafting of my Motion was very carefully considered and agreed with the promoters in early February this year.
If both instructions are agreed—and they probably will be—your Lordships’ Committee of Selection will have to decide between composing a committee that is ideal for considering the electoral and precept issues or one that is ideal for considering the AONB and access aspects of the Bill, if I may put it that way. I think that the electoral and precept aspects are more important.
My interest in the Malvern Hills arose through my wife, who was born in Little Malvern, and we regularly attend local events. By chance, last Saturday, we were in Malvern and climbed the Worcestershire Beacon—my hips have just about recovered. We have no property interests in Malvern, although my wife’s siblings do.
I would like to think that I am very well briefed on the MHT. I have an open mind, but I have some serious anxieties regarding the governance of the MHT. In particular, last year, the board lost its chair in acrimonious circumstances; there were accusations that it was being run by a small group and was withholding information from certain trustees. Some trustees complained of not getting information in a timely way, or even at all. I have taken up the governance matters with the Charity Commission at the highest level, and this is no longer a matter for me to deal with—I am not equipped to deal with it, nor is it my role. It should be noted that not all trustees are in favour of the Bill. However, advice from the Charity Commission is that the decisions of the trustees do not have to be unanimous.
I echo the comments of the noble Lord, Lord Faulkner, about the operational side of the MHT. Despite a recent tragedy, I have no doubt that the Malvern Hills are being very well looked after. There is an excellent new chief executive in place. I agree that the five Acts of Parliament that govern the Malvern Hills need to be brought up to date; some of the drafting is archaic and refers to organisations that are no longer extant, and the trustees are unnecessarily constrained in what they can do.
Compared with the eight petitions in 1995, there are 50 petitions on this occasion, reflecting the Bill’s complexity and controversy. Many of them are very well argued, and I am sure that the Select Committee will look at them all carefully.
Removing “natural aspect” from the objects of the Acts and replacing it with “natural appearance” is one example of shared concerns of those living in or close to the Malvern Hills or surrounding commons. Others concern estovers and other ancient rights of commoners. In the context of the trust’s rights to grant land access easements, the residents fear that the changed wording will invalidate previous case law and counsels’ opinions on what might affect the natural aspect, leaving the door wide open for future developments to be facilitated. “Natural aspect” continues to be used and understood in the planning context and neither the conservators of Epping Forest nor of Wimbledon and Putney Commons have chosen to remove those words from their governing Acts.
An important issue raised by many petitioners is whether or not MHT is a public body. Last year, I tabled a Written Parliamentary Question on this point and it was confirmed by the Government that MHT is not a public body. However, very recently, the ONS has undertaken a reclassification exercise and determined that MHT is indeed a public body. My understanding is that the ONS did not consult with MHT before making its conclusion public, which was rather surprising when MHT is in the course of putting a private Bill through your Lordships’ House.
If it is a public body, MHT might be subject to freedom of information requests, but it is not well enough resourced to deal with them. I am not a fan of FoI, although I have used it to good effect myself. Can the Minister tell the House what she thinks the new position is regarding FoI and MHT?
Some of the petitioners make compelling arguments that MHT is a public body because it takes in the precept as its main source of income. Car parking charges are considerable, but those are for the provision of a service. Charitable income is negligible. If it was a normal charity, funders could walk away if they disagreed with how it was being run. Instead, they must pay a compulsory levy.
No doubt MHT will consider the implications of this latest development. The committee will have to consider it because there are several potential consequences; these might include distinguishing between the legal and statutory requirements of being classed as a public body as distinct from its role as a charity receiving donations. As a public body, the trustees could have a duty to the levy payers rather than acting only in the best interests of the charity—a point touched on by the noble Lord.
I have identified two major issues of concern for the residents of the Malvern Hills area; that is, the area in the jurisdiction of the trust. They are the subject of my instruction to the Committee, and they are both linked. The first is the long-standing anomaly that some residents pay the precept while others also in the MHT landholding area do not. Although existing Acts provide that the levy-paying area can be applied to commons and wastelands at any time and from time to time, the provisions have never been used. However, the new draft position at Clause 71(6) appears to give the power only on lands acquired in the future, so the residents in those existing areas will never bear a portion of the precept. I also question whether orders made by the Secretary of State under Clause 71 really require the affirmative order process.
On the one hand, the trustees recognise that some paying the levy and some not is illogical and unfair. But, of course, there is no financial advantage for them in changing this because the total precept received would remain the same but there would be some increased costs for the trust. On the other hand, existing precept payers argue that they are exposed to an increased burden on costs, especially as some 46% of the trust’s landholding is outside the precept area and the trust continues to have the power to purchase more land. Parliament owes it to residents in the Malvern area to have the matter of the precept very carefully considered.
The second issue is the electoral and appointment arrangements for trustees. The noble Lord has carefully explained the new arrangements for the trustees. The proposals to have all the levy-paying parishes combined into a single electoral area is of concern to the residents because they believe they will lose their democratic right to elect their own representative. Their concern is that the new arrangements will extinguish the practice established in 1884 of ensuring that the individual needs of the different parishes—rural, urban and agricultural—are properly considered through their local trustee. That may now become particularly relevant if MHT is a public body.
A further concern is that non-levy payers, many of whom live in the rural areas, may have no voice at all. Extending the precept area could resolve these anomalies and be fairer. Matching the precept area to the landholdings of the MHT was envisaged in the 1884 Act, because, if the conservators acquired land in the future, they had the powers to levy the relevant parishes and they would be entitled to appoint a conservator.
The removal of the 18 trustees appointed by local councils across the whole of the area under MHT’s jurisdiction, to be replaced by the appointment of six independent trustees, via a new nomination committee, from anywhere in the country with no necessary connection to Malvern whatever, will further dilute the residents’ ability to have a voice in the trust. Surely the necessary expertise could be found from within the Malvern area or at the very least from within, say, 35 miles of Great Malvern Priory and all of Birmingham.
However, the question remains whether the complete severance of the link with all local councils is the best way of managing the hills effectively. Perhaps the residents of Malvern would be better served if the trust bought in some or all such expertise as and when needed and instead increased the numbers of elected trustees to give a fairer representation.
In addition to some of the concerns that I have had time to mention, I am concerned that, over time, the new arrangements would mean that it would be too easy for the trust to be taken over by a single-issue pressure group, with serious adverse consequences—a point recognised by the noble Lord.
In conclusion, I hope the whole House will welcome the principle of having a new Bill. It is essential that we instruct the committee to look specifically at the two areas I have suggested. However, the Committee will have to consider the petitions and other matters as well, and I fear that the Committee’s task will be somewhat onerous.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to follow the noble Earl, Lord Attlee, who has clearly carefully applied himself to the details, in both his speech and instruction. I thank the noble Lord, Lord Faulkner, for so ably introducing the Bill.
I have the misfortune not to have a special connection to the Malvern Hills, although I have been a visitor there a number of times, but I have had representations from people who are very concerned about their future who have asked me to speak today. They are passionate about the future of the hills and they support the Bill and the way forward. A really important point, as the noble Lord, Lord Faulkner, stressed, is that this is a charity and is under the governance of the Charity Commission, which we know is important for keeping a sense of direction and for bodies following their aims.
I have to reflect briefly on why we here in Westminster are debating this Bill. According to Google Maps, it would take us one day and 20 hours to walk to the top of the Malvern Hills—I do not think I would do it in that time myself, but that is the maximum record. It would take more than four hours by public transport. That being about 120 miles, it means the average speed is 30 miles per hour, which is something of an indictment of the public transport. None the less, the question is: why do we have a system of government that means that we are here in Westminster debating the future of a local area? Would it not it be much better if it was local people having the debate in that local area? However, we are where we are and we have to do the best we can, and that is what noble Lords are doing.
There are a couple of points that I particularly wanted to make. The noble Lord, Lord Faulkner, has outlined so much that I am not going to go over anything like all the ground that he did, but it is important to make the point about the reduction in the number of trustees from 29 to 12. That figure is the maximum number generally recommended by the charity governance code and the Charity Commission guidance. I think most noble Lords in this Chamber and elsewhere will have found themselves on many governing bodies, trusts, boards, et cetera, over the years. Twelve is a very large board, and we know how difficult decision-making can be in those sorts of situations. It is also important to stress that, if the Bill is enacted in its current form, the proportion of elected trustees increases from 38% to 50%. This is a modernisation and a moving forward—that is the overall direction of the Bill—for an area that sees 1.25 million visitors a year, according to University of Bristol figures.
It is worth noting—and many people have commented on it—what a good state the Malvern Hills are in. I looked this up. The word Malvern derives from the Celtic, “moel bryn”, which means “bare hill”. That is obviously an historic name, but we know that we live in one of the most nature-depleted corners of this blighted planet. I am sure that we can do better by nature; we can do better by those many visitors, and we know how important green spaces are to public health to make those spaces as good as they can be for visitors, for the farmers, and for the communities. This is an attempt to make a step forward, a modernisation. Ideally, we would not be doing this here at all, but given that these are the rules we operate under, I support the direction of the Bill.
Baroness Thornhill (LD)
My Lords, I too thank the noble Lord, Lord Faulkner, and the noble Earl, Lord Attlee, for their more detailed and comprehensive look at this Bill. Several years ago, when I was working for the Local Government Association with councillors in Malvern Hills, I came to enjoy being in the town. I found a super B&B on the main road and particularly enjoyed the backdrop of the wonderful Malvern Hills. However, I also heard of issues and concerns—even back then—with the Malvern Hills Trust, as it likes to be known. When I saw this Bill coming forward, therefore, my interest was piqued. It did not take very long research to see that the changes in the Bill were meeting considerable opposition—and I emphasise “considerable”.
As a former elected mayor, I am no stranger to some vocal members of the public opposing any modernisation within any organisation, however they are constituted, and, indeed, being resistant to any change whatever—do not get me started on development. However, the opposition to this Bill is something of a completely different order. As a member of our office staff said to me yesterday, “I have close friends in Malvern. They said the whole town is talking about it” and the evidence confirms that they are, so the noble Baroness, Lady Bennett, should be assured that they are having the debate, but it is mainly in acrimonious public meetings.
That the House has received more than 50 individual, highly articulate, well-intentioned petitions, including petitions from the local county, district and parish councils, from former chairs of the Malvern Hills Conservatives and even from a group of current trustees is a red flag. Raising substantive concerns in respect of this Bill, they surely tell a tale in themselves. I think the House has received more petitions in respect of this Bill than it has received in total for the past 10 years for all Private Bills. That their concerns appear to be completely ignored begs the question as to the motives behind these changes. What will the Bill change? What powers is it granting that are causing such a furore of public opinion?
I do not doubt that the trust could and should be improved, which is why I am not opposing this Bill but think that it must and should be improved. However, I do believe that the trust’s PR has been dire, or we would not be in the situation that we are in now. The noble Lord said how wonderfully things have been managed and how good things are, but “Oh, but we have to change”. I would argue that the trust has not made the case for change to the general public. That is in how it has conducted its affairs and its consultation, which needs to be looked at.
It is clear that the promoters, as well as consolidating the existing five Acts, wish to be granted substantial additional powers while being governed by a much smaller and— as outlined well by the noble Earl, Lord Atlee—less democratic board. For example, if one of the six elected people stands down, the other six can appoint a person in their stead, so it is easier to be taken over by a single-issue pressure group. The evidence suggests that little, if any, thought has been given by the promoters to the substantive concerns raised by the levy-paying public in Malvern who fund this—and I am going to use the words—public body. I commend the work of the Malvern Environment Protection Group in bringing these issues to the attention of the public.
There is even a dispute as to the constitutional nature of the trust. Several noble Lords have referred to it as a charity, yet we hear that as recently as last month it was deemed by a KC to be a public body, and that is usually defined by the amount of taxation that it gets as part of its revenue—which, again, was well expressed by the noble Earl. This must be clarified, because noble Lords will be very aware that there are significant legal differences as to whether you are a public body or a charity in what you can do, what you cannot do and to whom you are accountable. This lack of clarity is making members of the public nervous and, whether rightly or wrongly, question the motives and intentions of the trustees.
This has, understandably, set hares running, and, it might seem, with good reason, because something starts to smell not quite right. As mentioned by the noble Earl, Lord Attlee, its former chair could not find out how much a senior official of her trust was being paid. We all know that if you are the chair of any board, you are responsible, so to not be able to have that information tells you that something is a bit rotten in the state of Denmark. These anxieties and fears were further fuelled when, at recent meetings to discuss this Bill and the financial arrangements regarding it, eight trustees were, in effect, gagged from speaking or voting. Moreover, in successive board meetings, the level of transparency and accountability would appear to have fallen significantly below what would be expected of any public body or, indeed, any well-run charity. In such circumstances, I am quite shocked that they are pushing ahead regardless. Surely, with this level of concern and with so many unanswered questions—including from some of their own trustees—they should think again.
Yes, I too am deeply concerned about the governance arrangements. These proposals remove 140 years of accountability to local councils and the public, which should not be cast off lightly. I sense the public feel that they have not been given good reasons for this change. “Everything’s going wonderfully; everything’s terrific; it’s all managed well, but we need to modernise and move forward”. What does that actually mean?
If power could pass to a small group of people to take over and run the trust, there is a fear that corruption will increase and of course that changes will be made to alter the nature of and access to the hills—and also that it could make significant amounts of money. The Bill erodes the rights of taxpaying residents to question and challenge this new body on how that money is spent: a right they have enjoyed for 140 years. Retaining or clarifying its status as a public body is vital to ensure that the organisation remains subject to a judicial review and the ability to be subject to freedom of information.
In summary, therefore, I welcome the proposals from the noble Earl, Lord Attlee, and to a large extent those from the noble Baroness, Lady Coffey. However, I think the issue about access, the one line in her proposal, should be left to trustees and not be down to us to dictate. I feel that we need to consider the arrangements concerning the appointment of board members and the scope of the levy-paying area. I also urge noble Lords to carefully consider the application for a general power.
What might be of interest to your Lordships—and please indulge me on this; it is probably because I am married to a historian—is that, when the Act was discussed by noble Lords in 1993, Baroness Macleod of Borve said:
“It would empower the conservators to change the face of Malvern forever”.
Lord Hampton added that the conservators were
“seeking powers well beyond those needed to carry out their prime functions”.
Lord Moran commented that there was
“no explanation of why the conservators thought that they required these comparatively sweeping powers”.—[Official Report, 8/3/93; cols. 870-76.]
These objections seem to me to be still valid because they have not been answered, because of the lack of good engagement and good consultation.
Finally, I urge the promoters of this Bill to very carefully consider the costs they are incurring. There was yet another acrimonious meeting, where questions went unanswered about the amounts of money. That too is not good. If you are funded mainly by taxpayers, they want to know what you are spending their money on and how much this is all going to cost. There are estimates that the true final cost could be well over £1 million, compared with an annual income of £1.4 million. Had the conservators actively engaged with those who articulated their concerns, I believe they would have saved themselves a great deal of time, effort and expense.
There is still an opportunity to do this now. It should never have been necessary for five trustees to have to petition this House, with the consequence that they and others appear currently arbitrarily suspended from matters relating to that Bill. I believe that the committee will have its work cut out, but, having been on a Private Bill Committee, I have no doubt that it will do it and do it well and that the suggestions for its work from the noble Baroness and others are going in the right direction.
I really feel that the conservators should answer the questions raised and conduct themselves in a more open and transparent manner than it would appear is happening at the moment. Then we can come to an amicable situation where we can satisfy most of the people. One of the things I have learned over the years in politics is that you can never please all of the people all of the time. I used to settle for pleasing some of the people some of the time.
Lord Murphy of Torfaen (Lab)
That puts a different light on things.
I support my noble friend Lord Faulkner of Worcester in supporting this private Bill. I also commend the noble Earl, Lord Attlee, for explaining his points in detail, as did the noble Lord, Lord Faulkner. I understand the points that the noble Baroness, Lady Thornhill, made about the difficulties faced in Malvern, but there are two points I would like to make.
First, the Malvern Hills really are of not just local, regional or even national significance but of international significance and importance. In a way, I suspect that, if a private Bill—which after all 140 years ago set up the trust—is to be used, it is being used because the Malvern Hills are so utterly important to our country. Like the noble Baroness, Lady Thornhill, I have served on private Bills in the other place. The Select Committees do a very thorough job and I have no doubt that the Select Committee which your Lordships will appoint to deal with this Bill will do an equally thorough job, and clearly it needs to do precisely that. Let us see what happens, but that is the mechanism we have in front of us and that is why it is such an important issue.
Secondly, I just want to touch for a few moments on why I as a Welshman am interested in the Malvern Hills: after all, we have a few hills of our own in Wales, including in my former constituency and where I live, my valley, Mynydd Maen. They rise to 1,500 feet above sea level—100 feet more than the Malvern Hills. I am not sure they are quite as beautiful as the Malvern Hills and I would not have said that when I was the Member of Parliament for that constituency.
The Malvern Hills are a wonderful part of our scenery in England. It seems to me that we are doing this, as I said, because of their huge significance and importance in our society. I fell in love with the Malverns in the 1960s, and indeed I was there during the last month on two occasions. I always remember the first time I approached those hills from Ross-on-Wye; you go up to Ledbury and see these magnificent Malvern Hills. But to me, they were always associated with my other love, Sir Edward Elgar, our greatest British composer in my view. Some of your Lordships might be—I am, certainly—old enough to remember Ken Russell’s black and white film on the life of Elgar. It opens with a young Elgar riding across the top of the Malvern Hills to the sound of the introduction and allegro. Every time I go, even now, after all these years to the Malvern Hills, that music is in my ears.
Remember that Elgar himself was a Malvern man. He lived for 76 years, and for 55 of those he lived in Malvern. His grave, and those of his wife and daughter, lie in St Wulstan’s Catholic church in the foothills, in Little Malvern. To those of us who love his music, I say that the “Enigma Variations” and the “Dream of Gerontius” were actually written, among other things, when he was within sight of the Malvern Hills. So I think there is an importance of acquainting or associating the work of this great composer and British music with these wonderful hills. That is why it is important to me.
There are all sorts of other reasons why the Malvern Hills are important. I cannot climb them; I walk them, I even ride a car across them—it is only eight miles. Nevertheless, to me, those hills are something so very special that something like this means that they deserve the sort of scrutiny and the sort of attention that a Select Committee of the House of Lords can give them.
I conclude by saying to your Lordships that in 1934, the year that Elgar died, not long before died, he wrote of his cello concerto:
“If ever after I’m dead you hear someone whistling this tune on the Malvern Hills, don’t be alarmed. It’s only me”.
Baroness Coffey (Con)
My Lords, I am delighted to contribute to this debate and it is a huge pleasure to follow other noble Lords. I think it has been an interesting exposure so far of not only the passion that people have for this wonderful part of our country but the interest in what has brought the Bill to this point.
The noble Baroness, Lady Bennett, talked about local people and the local area. Interestingly, the Malvern Hills Trust area is enveloped within an AONB but, as has already been pointed out, one of the reasons why we are in this rather unusual situation is that it was recognised, well over 100 years ago, that not only should this area be protected but that a levy needed to be created to help contribute towards that. We know that the 1949 Act allowed the creation of the national parks and AONBs, and there is something to be said here in thinking about the governance. It is not a suggestion I want to specifically recommend to this House or to the Committee, but one of the things that has come up in this situation is around governance: is it a charity, a public body or even a public authority? This special situation is why we have the Bill here today. This is not the first private Bill I have been involved in; as a Defra Minister, I was involved in the Middle Level Act 2018. It is interesting to see a DCMS Minister—the noble Baroness, Lady Twycross—here today, because of that link to the charity.
We should bear in mind that the trust itself says it became a charity in 1984 only because it was legally required to do so. The other thing that has not been set out to your Lordships today is that a different approach was considered a few years ago. In the two Charities Acts—in particular the Charities Act 2011—a process was initiated, and which went a long way, to consider whether some of these modifications could be changed, recognising the provisions that have been put in place thanks to Parliament to simplify some of this process. However, given the degree of concern and opposition, the Secretary of State at the time, through the Charity Commission, rejected the approach of taking it through the parliamentary procedure of the Charities Act, and said that it should come back as a private Bill to get the full scrutiny that the petitioners quite rightly expect.
I am very grateful to the noble Lord, Lord Faulkner of Worcester, for his expert navigation of the Bill so far, and to my noble friend Lord Attlee. I am conscious that the noble Lord has perhaps engaged more than I have in thinking some time ago about how to make the governance a particular focus of discussion. That has been a key issue which has been raised in several of the petitions.
I am also conscious of what the noble Baroness, Lady Thornhill, said, and she is right to raise those concerns. There is certainly trouble at mill. It is not a happy ship, and it should not necessarily need Parliament to be involved. However, recognising the situation we are in, and recognising that nobody wants this trust, this conservators’ body, to be collapsed and simply absorbed into the AONB, here we are. It is right that we have a Select Committee consider these important issues.
One reason I put my instruction in is because the private Bill is rarely used in Parliament. There are only a handful of other places in a similar situation, such as what happens with the Conservators of Ashdown Forest, and perhaps the New Forest—which has a far more ancient aspect of governance, but which was still put into statute. Then there is the much smaller, but still similar, Wimbledon and Putney Commons trust. What the Malvern Hills Trust has in common with the Wimbledon and Putney Commons trust is the ability to, in effect, require a levy. That is what lends itself to the governance, and to people being concerned that, under their own volition, and also by being part of the Charity Commission, the trustees, who are also the board of directors—they are holding the two posts simultaneously—are saying that they have to follow what the Charity Commission is saying, not necessarily the original status of what was put forward. That is why I understand why people are concerned that changes in representation could have an impact on the future of this very special part of our country.
As has been mentioned, there are other situations where a proportion of trustees or directors—whatever they are going to be called—are elected directly, and others are appointed. We seem to have almost a National Trust Council situation, where there is a balance. But I raise the point, which is also being put forward by some of the councils which have petitioned, that all the 29 appointed bodies today—apart from the Church Commissioners—are, I believe, elected in their own right, and will appoint somebody to do that. This is a changing point, which is why—as has been pointed out—it has attracted attention from a record number of petitioners on a private Bill. This Bill is not the same as a hybrid Bill, and HS2 certainly got more, but, according to the clerks, it received a record number of petitioners for a private Bill.
I am interested in this because it is a very special part of the country, and because, through my experience as a Minister, I understand how passionately people feel about a very special place where they live, and which they treasure and want to continue to be special. They are nervous about not only aspects of the governance but some of the clauses in the Bill. I do not know where the equivalent here of the under-gallery is, but I appreciate that the parliamentary agent is almost certainly going to be here somewhere. I am not suggesting that they are going to try to strike out a number of the petitioners, but we have already heard from the noble Baroness, Lady Thornhill, that some people who are currently on the board and have made a petition to express publicly their concerns are now in a particular procedure and process.
To that extent, one thing that can happen is that, if certain petitions are struck out, the Select Committee is not required to consider the issues that they may have raised. That is why the noble Lord, Lord Faulkner of Worcester, is accurate to say that I have basically copied and pasted—recycling is classic environmental stuff—the instruction of the departed Baroness Macleod of Borve for consideration today.
I deliberately did not put the commercial side in because I think that there is a lot of sense in trying to increase the opportunity for the trust to raise money itself in a variety of ways; at the moment, it seems somewhat constrained in that. I do not intend to go through all the different petitions, but there are some very valid discussions about aspects of the Bill. I am sure that the parliamentary agent will work with the promoters to tidy up parts of the Bill that just do not work today—there are references in it to subsections that do not exist. That is not necessarily a matter for the Select Committee, but it needs to be tidied up.
I come back to this key question about whether it is a charity or a public body. There is no actual legal definition of what a public body is. I am mindful that, in response to a question posed by my noble friend Lord Attlee, the Government said that it was not a public body. Meanwhile, the ONS has come forward to say that it is some kind of public body or public authority, and I am not surprised by that classification. I cannot think of another example—except potentially the Wimbledon and Putney Commons trust that I referred to—that can require a levy to be imposed on people and not be considered some kind of public authority. I do not want to get into the details about FoI and the like, but I notice that, on its own website, the trust refers to the fact that it is under obligation through public law regarding biodiversity. I know, because I wrote that obligation. I passed that regulation myself, and it is only for what are considered to be public authorities.
Although the Bill puts in a lot of powers to the Secretary of State, it is unclear right now—I would be grateful if, when she speaks, the Minister could clarify—whether that means it is the Secretary of State for Culture, Media and Sport or the Secretary of State for Defra who will make these determinations in the future. It is those sorts of things that, as a consequence, have got people’s backs up, because this is where part of the governance element comes through, when it is said, “You’re not here to represent areas; you’re here to do what the charity says”. This is why this really does need some careful scrutiny. My noble friend Lord Attlee has put down a perfect instruction. Mine might have been copied and pasted, but it was made with the intention of making sure that other issues that have been brought forward by the petitioners are carefully considered.
I am conscious that access is a really important matter of debate. There has been a recent Supreme Court ruling, again, linked to legislation in this House— I am of course referring to Dartmoor. That legislation and that Supreme Court ruling do not apply anywhere else in the country. They apply only to Dartmoor, and that is because of the wording of the Act. That is why, overall, I really am keen for the Select Committee to consider carefully all the factors that petitioners have raised, and why I have put forward an instruction to make sure, in spite of what other processes might go on in Parliament, that these are considered.
I do not intend to oppose the Second Reading of the Bill, and I hope that the Committee will give it fair consideration on behalf of all the petitioners and, importantly, on behalf of Parliament.
Lord Hampton (CB)
My Lords, in speaking in the gap, I apologise for not putting my name down. I did not think that I was going to have time, but it turns out that I do. I must also declare an interest that I grew up within sight of the Malvern Hills and I went to school in Malvern Link and in Malvern Wells.
The noble Baroness, Lady Thornhill, slightly took the wind out of my sails by quoting my father, but I will quote a little more of what he said at Second Reading on 8 March 1993:
“I love the hills as they are and I do not anticipate with pleasure any major change. I have not followed the arguments in the Malvern Gazette as carefully as perhaps I should have done. I was first alerted to the proposals by someone who said that the Malvern Hills conservators were seeking considerable extra powers to build houses, offices and warehouses, to make roads and to fence areas off”.
I will, if I may, also quote my cousin, Baroness Macleod, in the same debate:
“However, my noble friend will know that if the Bill goes through in its present form it is possible, and even probable, that the Malvern Hills will be ruined forever. That is one of my reasons for putting down the Instruction to the Committee. Worcestershire is the most lovely county and the Malvern Hills the most beautiful range of hills in the country … I start with Clause 3, which is the first clause that matters. It would empower the conservators to change the face of the Malvern Hills forever. They would have the power to build a McDonald’s, a Little Chef, and fish and chip shops. All of those eating places are welcome in the right place, but not on the Malvern Hills”.—[Official Report, 8/3/1993; cols. 864-70.]
We had dire predictions in 1993 but, when I was there last, the Malvern Hills were as beautiful as ever. There is always a suspicion of change when anything comes in but, as it is, this seems a very sensible Bill.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Baroness Twycross) (Lab)
My Lords, I am pleased to have the opportunity to contribute to an important and interesting debate on a much loved and important British institution—or rather, not necessarily an institution, but the hills themselves. I thank my noble friend Lord Faulkner for his explanation of the Bill and its importance to the Malvern Hills Trust. I am also grateful to the trust for preparing a briefing note for Peers on the Bill explaining its aims and key provisions. As my noble friend Lord Faulkner said, the Malvern Hills are a spectacular area rich in wildlife and much loved by local communities and visitors alike. As my noble friend Lord Murphy said, they are a wonderful part of our scenery.
As my noble friend Lord Faulkner outlined, and as was referred to by a number of other noble Lords, the Malvern Hills Trust has been endowed since 1884 with the responsibility of protecting and managing the iconic Malvern Hills—not only an area of outstanding natural beauty but one of only 159 national character areas as well as a site of special scientific interest. I note that the Bill will not alter the trust’s core charitable purpose of protecting, maintaining and conserving the natural aspects of the hills and keeping them unbuilt-on as an open space for public recreation.
The noble Baroness, Lady Bennett of Manor Castle, noted that the intention of the Bill is modernisation. DCMS will always welcome charities working to ensure that their governance follows the best practices of charity law and governance. It is clear from the number of petitions that there is significant local interest in the Malvern Hills Trust and the importance of observing open access to the hills for future generations. I particularly enjoyed the contribution of the noble Lord, Lord Hampton, in the gap. It must be unusual to have your father quoted in a debate from decades ago, and even less usual to be able to quote two close relatives from the same debate.
I also thank the noble Earl, Lord Attlee, and the noble Baroness, Lady Coffey, for the instructions they have tabled. These will ensure that the Bill receives detailed scrutiny as it proceeds to Committee. I thank the noble Earl, Lord Attlee, for asking about the implications of the recent Office for National Statistics decision to classify the Malvern Hills Trust as a public body. As the noble Earl said, the ONS recently announced that it has classified the Malvern Hills Trust as part of the local government sub-sector of the public sector for the purposes of economic statistics. I am grateful to the noble Earl for helpfully drawing this to my attention. It will be for the Malvern Hills Trust itself to consider what, if any, implications this classification decision has for the charity. In response to the point made by the noble Baronesses, Lady Thornhill and Lady Coffey, I can say that it is perfectly possible to be both a charity and a public body.
In answer to the noble Earl’s point about the extent to which the MHT will be subject to the Freedom of Information Act 2000, the ONS classification does not mean that the Malvern Hills Trust is subject to that Act. Separate legislation would be needed to bring the trust within the scope of Freedom of Information Act requests. The noble Baroness, Lady Thornhill, raised the number of complaints and petitions from local residents against the Bill, which was alluded to in a number of speeches, including that by the noble Baroness, Lady Coffey. It is clear that there is significant local interest in the role of the Malvern Hills Trust in preserving the Malvern Hills for the benefit of future generations. This level of public interest is to be welcomed. I note that a large number of petitions have been lodged against the Bill, and I would encourage the trust to work with petitioners to respond to their concerns and find workable solutions.
The noble Baroness, Lady Thornhill, raised the use of the general power in Clause 83, and asked whether it was required. General powers are very common in the charity sector. The Charity Commission’s published model governing documents for charities includes a general power. In relation to the Malvern Hills Trust, the general power could be used only to further the charity’s work in pursuance of its charitable objectives and would not alter anything in the way in which the sale of land and the granting of easements are dealt with.
The noble Baroness, Lady Coffey, asked why the changes proposed were not being made through secondary legislation. Given the nature of some of the charity’s proposals, coupled with the strong public interest locally, DCMS and the Charity Commission agreed that it would be more appropriate for those measures to be delivered through a private Bill. This approach allows greater scope for public and parliamentary scrutiny and debate than would be the case under a Section 73 procedure, whereby such measures are not always debated in Parliament. The noble Baroness also asked which Secretary of State was being referred to. It would be the Secretary of State with policy responsibility, so primarily Defra in most instances, but MHCLG in others.
As noble Lords will know, the Government do not adopt a position on private Bills unless a Bill contains provisions considered to be contrary to public policy. We take the view that this Bill does not contain any such provisions. Therefore, as is the tradition with private Bills, the Government will not be adopting a position on this Bill. I am sure, however, that the trust will want to reflect carefully on the points made by noble Lords in today’s debate as the Bill proceeds to Committee.
Lord Faulkner of Worcester (Lab)
My Lords, may I say how delighted I am by the tone and content of every speech made in this debate, particularly that of my noble friend the Minister? She answered a number of the issues raised by others as the debate has gone on, which I therefore do not need to repeat now. What I would like to do, though, is first to endorse what my friend Lord Murphy said about the international status of the Malvern Hills—the fact that it is wider than Malvern, wider than Worcestershire, wider than the West Midlands. They are an international icon, and it is the determination of everybody concerned with the trust in future to make sure that that goes on.
The noble Lord, Lord Hampton, talked about his ancestor—his father, I assume—and the dire predictions he uttered in 1993. It is interesting that the hills have not been ruined over the last 32 years: there is no McDonald’s or Kentucky Fried Chicken there. The hills are in as good a condition today as back in 1993, and the Bill today is to modernise the governance and levy-paying arrangements and to ensure consultation with local residents. I note what the noble Baroness, Lady Thornhill, said. She is a great critic, I think, of the trust and of the consultation, but it is fair to say that the trust went to great lengths—
Baroness Thornhill (LD)
I am a critic not of how the trust has managed the hills’ affairs—the general management —but of how it has managed the Bill process. I hope that that came across to everyone. I would not dream of commenting on that; I am not in a position to do so.
Lord Faulkner of Worcester (Lab)
I am grateful to the noble Baroness for her clarification, but she is presumably aware that 15,000 leaflets were distributed to households in the area. Posters were put up, businesses and cafes were leafleted, there were advertisements in the local press and on social media, and there were drop-in sessions. With an issue like this, you cannot please all the people all the time—which is, I think, almost exactly the words she finished her speech with—but I am certainly satisfied that it has done the best it could. I am certain that the points that have been made in the debate tonight will be taken on board by the Select Committee, which will look at the petitions and consider all the other points that have been made today.
The noble Earl, Lord Attlee, whose contribution I am delighted to pay tribute to—his interest in the formulation of the Bill deserves the highest praise—expressed concern about the possible dominance of single-issue candidates such as those, perhaps, who oppose further housing in their area. I imagine that the committee will consider this in detail, but there are one or two points that can be made in response. First, this could happen where there is a single electoral area, as proposed in the Bill, or, as now, where candidates are elected by individual parishes or wards. It is also worth bearing in mind that the exercise of democracy and the election of trustees has not been entirely without problems. One example is that under the present arrangements, most seats go uncontested: eight of 11 seats were uncontested at the last election. If interest in the election can be enhanced by the creation of a smaller board of trustees, then that change is worth while.
I do not intend to answer the question, “public body or charity?” The Select Committee will want to look at that, but it seems to me that it does not have the dire consequences that some people think.
As for the levy, which the noble Earl, Lord Attlee, mentions in his instruction, it is important to remember that the trust is under a constraint which means it cannot incur expenditure on promoting provisions in the Bill which are materially different from the existing levy legislation. The Bill brings together the existing levy arrangements into one clause with modern drafting and preserves the status quo.
The noble Baroness, Lady Coffey, briefly turned to the Dartmoor judgment, the question of open access and the freedoms which visitors on Dartmoor have. The trust has been studying the judgment and it will obviously take account of any elements that have implications in the drafting of the Bill; and it is something I imagine the Select Committee will want to hear about. However, the existing Malvern Hills legislation and the by-laws make provision to prevent camping on the hills, so I cannot see the Malvern Hills being turned into a giant campsite as a result of the Dartmoor judgment.
I hope that either the Minister or I have been able to address most of the points that are of importance to noble Lords. The promoters of the Bill have, as I mentioned earlier, continued to work hard to conserve the natural beauty of the hills, and I am delighted that so many of your Lordships have referred to their natural beauty. But the time has undoubtedly come to modernise the way the trust is constituted and to update and consolidate its powers.
Alluding to my predecessor in moving a private Bill on the Malvern Hills, the noble Viscount, Lord Colville, I hope that your Lordships will see that as a matter of principle, it is wholly reasonable to try to bring the legislation up to date, subject, of course, to getting it right. As a number of noble Lords have said, that is the point of a Select Committee procedure. I hope, therefore, that noble Lords will give this Bill a Second Reading and establish the Select Committee. I beg to move.
Earl Attlee
That it be an instruction to the Select Committee to whom the Malvern Hills Bill is committed that—
(a) notwithstanding that the promoters themselves are under a restriction which prevents them from promoting provisions in the Bill which would have the effect of changing the existing levy arrangements materially, the committee considers the provisions in the Bill relating to the levy paying area; and
(b) the committee considers the provisions in the Bill relating to the composition of the board of the Malvern Hills Trust and the proposed arrangements for electing and appointing trustees.
Baroness Coffey
That it be an instruction to the Select Committee to whom the Malvern Hills Bill is committed that—
(a) the committee considers to what extent if any the powers proposed to be granted by the Bill go beyond what is necessary for the Malvern Hills Conservators (to be renamed under the Bill as the Malvern Hills Trust) properly to manage the land within their jurisdiction; and
(b) the committee pays particular attention to the provisions which would impede or restrict public access.