Amendment 1

Kew Gardens (Leases) (No. 3) Bill [HL] - Committee – in the House of Lords at 3:41 pm on 21st May 2019.

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Lord Hodgson of Astley Abbotts:

Moved by Lord Hodgson of Astley Abbotts

1: Clause 1, page 1, line 4, at end insert—“( ) The Secretary of State may not grant a lease for more than 31 years under subsection (1) unless he or she has consulted the Charity Commission on the compliance of the proposed lease with the functions of the Royal Botanic Gardens, Kew, under section 24 of the National Heritage Act 1983 and with sections 117 to 123 of the Charities Act 2011 (restrictions on dispositions of land) and the results of that consultation have been published.”

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Conservative

My Lords, with this amendment, we leave the harsh atmosphere of steel manufacture for the gentler world of Kew Gardens, and what better day to do so than the first day of the Chelsea Flower Show?

I will begin by making it clear what my amendment is not about. It is not an attack on the Bill itself, which I think has an excellent purpose in encouraging Kew, like all semi-public bodies, to make best use of its assets. It is not an attack on the institution itself. I explained the Second Reading that, though I am no plantsman, I am aware of Kew’s worldwide reputation, and it is part of our soft-power armoury. It is not an attack on the trustees—good men and women true—who, I am sure, are doing their best. It is not an attack on the Minister, who has given several passionate speeches in favour of Kew during the earlier stage of this Bill; and nor, indeed, is it an attack on his officials in the Box, who have been more than kind to us, and who have written, had meetings and helped those of us with an interest in this topic as much as could reasonably be expected.

But the French have a phrase—the French always have a phrase—“autres temps, autres mœurs”. For those of you who cannot understand my execrable French, it means “other times, other customs”. All of us who are involved and who have an interest in this Bill will eventually move on, and we cannot be certain that those who come after us will be as well motivated as today’s participants and protagonists. Therefore, we need to ensure that the keys to the castle are safely guarded forever against two broad types of possible events. The first I could describe broadly as conspiracy—that is to say, in the future, a determined effort to misapply Kew’s assets, maybe in response to some shift in national government policy. The second type—in my view a more likely outcome, but I hope I am not using unparliamentary language—is a cock-up: that is, an administrative failing or oversight that is not caught in time.

This is the essence of my amendment. The Bill’s intention is to open up considerable financial returns by extending the maximum term of a lease from 31 years to 150 years. The Explanatory Notes focus on seven houses on Kew Green that are owned by the Crown and are said to be surplus to Kew’s requirements. Before we go any further, I would be grateful if the Minister could explain whether there are any other assets to which the Bill might apply in future that are currently hidden from view. In other words, is this a one-shot deal after which nothing else can happen, or, when the Bill is passed, might we suddenly find that a series of other assets is revealed?

My direct concerns are twofold. As I said, the Bill increases the financial resources available to Kew. Noble Lords will be familiar with the crime thriller book or film in which the grizzled detective with 25 years’ experience tells his naive new recruit to “follow the money”. That has been a feature of some charities’ behaviour in recent years—a tendency to overlook and downplay the fact that, as a charity, it has a stated public benefit objective and instead to be dazzled by access to funding. That is my first concern.

My second concern is potential inflexibility. Extending leases is of course financially very attractive. However, once the lease is signed, the asset is effectively gone, at least for 150 years. At Second Reading, a number of noble Lords, including the noble Baroness, Lady Kramer, drew attention to places where Kew’s service performance offering might be improved. So we need to be sure that any new arrangements balance the search for funding today with the constraints on Kew’s future operations and its overall performance in future. I would feel happier if we had a clear regulatory structure and lines of authority.

I will not repeat what I said at Second Reading. Suffice it to say that the Royal Botanic Gardens, Kew is a charity—but a charity with a difference. It is what is known as an “exempt charity”: that is, it can access all the benefits of a registered charity, on tax and so forth, but it does not—indeed, cannot—register with the Charity Commission, which therefore has no sight of, and no ability to watch, what is happening in the charity. Instead, an exempt charity has what is called a “principal regulator”, which in Kew’s case is Defra—the Minister’s department. However, “principal regulator” is a misnomer. The principal regulator’s sole task is to ensure compliance with charity law. When the principal regulator discovers malfeasance, it can do nothing about it. It has no enforcement power but has to pass the case on to the Charity Commission to take whatever actions are necessary. As I said at Second Reading, its role will be closer to that of a traffic policeman than that of a regulator. On top of this already somewhat confused situation, we have the provisions of the National Heritage Act 1983, which has a whole section devoted to Kew and gives the Minister very wide powers indeed, but which nowhere mentions the need for an exempt charity to comply with the provisions of the Charities Act, despite the Minister having the very wide powers to direct the board.

My noble friend Lord Eccles has been good enough to put his name to this amendment. I am delighted that he has done this, because as a past chairman of Kew he can speak with far greater authority than I can. I think he intends to focus on the part of the ministerial brief on power, so I will say no more about it now.

What is the department’s answer to this regulatory model? Its deus ex machina is the existence of a memorandum of understanding signed in 2010 between the department and the Charity Commission, in which—as I understand it; I have not seen it so cannot be certain what it says—the department binds itself to observing the principles of charity law in connection with Kew. I do not doubt that this represents an effective tactical bridge, but strategically it is very weak because an MoU is capable of being swept away at the stroke of a ministerial pen.

My amendment aims to reinforce that potentially weak bridge. It does so by binding the existing MoU into the Bill, requiring the Secretary of State in statute, before he grants any lease extensions, to consult the Charity Commission and to publish the results of that consultation. Some, perhaps including my noble friend, may argue that this is bureaucratic, to which I reply that Kew’s worldwide reputation is too valuable to take chances with. The need for these consultations will be infrequent—perhaps only one will be needed if my noble friend gives the answer that only seven properties will ever fall under the provisions of this Bill.

About quarter of an hour ago, the noble Lord, Lord McFall, moved a series of changes to the procedure rules of your Lordships’ House. One of them permits short explanatory statements to amendments. I thought I might be able to add one to this amendment, so I went to the Public Bill Office to ask whether I could. I was told, “Not yet, you are jumping the gun. You have to wait until the House has passed it”. If I were able to table a short explanatory statement summarising what I am trying to achieve, it would read as follows: “to clarify and strengthen the lines of responsibility for ensuring compliance with charity law for the trustees of the Royal Botanic Gardens, Kew, Defra, the relevant government department, and the Charity Commission”. I beg to move.

Photo of Viscount Eccles Viscount Eccles Conservative

My Lords, I have put my name to my noble friend’s amendment and will concentrate briefly on what I would describe as a gamekeeper and poacher situation. Because Defra and Kew together determine the interpretation of the general functions of Kew, which are set out in Section 24, they can come to a mutual definition of what is within its charitable purposes. My noble friend is asking whether there should be another arbiter of these matters.

At Second Reading, my noble friend Lord Selborne, who was for a while the chairman of the trustees of Kew, raised a question which had arisen in the 19th century when the Hookers were the directors. Kew is a very complicated institution, make no mistake about that; because of its history, science and complex estate, and because it is a public garden that is open all the time, it juggles choices. The question that arises out of Section 24 is how you make those choices and how you interpret that section. My answer is that Section 24 and the scheme of the Act are quite clear: Kew is primarily a scientific institution. It has six general functions, five of which are concentrated on the science. Indeed, the first two of those functions encourage Kew to study not only plants but related subjects, and to go out and proselytise about the information which it has put together in the most amazing way. The sixth function is the public parks function, which is quite cautiously phrased and, to be honest, pretty discretionary as compared with the science of Kew.

I hesitate to say that the Hooker controversy has arisen again, certainly not as it was in the 19th century. However, there is a need for Defra and Kew to come to a mutual interpretation of these functions and to publicise that interpretation so that both Parliament and the public can see clearly how they are being interpreted at the time. That would inform Defra and Kew in any discussion they might have with the Charity Commission under my noble friend’s amendment. I feel strongly that that needs to happen, so I strongly support the amendment.

Photo of Baroness Bakewell of Hardington Mandeville Baroness Bakewell of Hardington Mandeville Liberal Democrat Lords Spokesperson (Environment, Food and Rural Affairs)

My Lords, I agree that it is important to have safeguards, and, as the noble Viscount, Lord Eccles, said, scientific research is one of the six major functions at Kew. However, it needs funding, and this amendment is unnecessarily restrictive. The trustees’ implementation of the MoU, when implementing the leases, must ensure that the ethos of the trust and that of the Charity Commission is adhered to, and there needs to be trust that they can do that. If an asset needs significant investment on a 31-year lease, which these seven houses probably do, it is not an asset but a liability, because there is no long-term plan for the asset. A longer lease of no more than 150 years will allow the leasee to invest in the property and allow for proper management of that asset.

I will listen to the Minister’s response with interest, but at this moment I do not feel obliged to support the amendment.

Photo of Baroness Jones of Whitchurch Baroness Jones of Whitchurch Shadow Spokesperson (Environment, Food and Rural Affairs)

My Lords, we have considerable sympathy with the points made by the noble Lord, Lord Hodgson, and the noble Viscount, Lord Eccles. We have also tabled amendments which are another way of trying to address the same issue. Our concern is that this short Bill puts too much individual power into the Secretary of State’s hands, and we need to make sure that the right checks and balances are in place so that that power is used wisely. We seek to have an external body, like UNESCO, to oversee the powers being allocated, with the Secretary of State unable to influence what UNESCO is doing. However, I appreciate that the noble Lords are coming at this from a different direction.

The point of the noble Lord, Lord Hodgson, was well made: it is not about now but about the future, about other times and places when other players will be in post, and we need to make sure that they exercise their responsibility wisely. Whatever statements were made about the current Secretary of State, this is about future Secretaries of State and indeed future members of the board, and the need to make sure that they have the correct relationship.

This is also about different circumstances. The noble Viscount, Lord Eccles, said that people juggle with choices, and that is absolutely right. They will always be under pressure and there will always be a shortage of money, so we need to make sure that the financial demands on the shoulders of the individuals concerned do not lead them to make short-term choices which would damage Kew in any way. I therefore have considerable sympathy with the amendment; I am interested to know how the Minister will respond to this and thank the noble Lord for raising this issue.

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

My Lords, I am most grateful to noble Lords, particularly my noble friends. The amendment seeks to apply consultation by the Charity Commission to the actions of Defra and RBG Kew, which, I should say, is a charity specifically exempt from direct regulation by the Charity Commission under Section 22 of and Schedule 3 to the Charities Act 2011.

I say this with passion: there is very little difference between what we are trying to achieve in protecting Kew when granting these leases and what we are trying to achieve for future generations, whoever has responsibility for these matters. The Bill does not affect any of the high protections already afforded to Kew; it is about changing a figure of 31 to 150. All the protections will continue to apply. I absolutely understand my noble friend Lord Hodgson’s point, and that of my noble friend Lord Eccles, who has great experience in this field; their intention clearly is not to attack the Bill or Kew—quite the reverse. It is in everyone’s interest to look after Kew.

I need to set out something by way of legal advice on the amendment; I received the advice from senior departmental government lawyers and counsel.

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Conservative 4:00 pm, 21st May 2019

Before my noble friend leaves behind the issue of the leases, can he let the Committee know whether other assets could be leased, or are we talking just about seven properties on Kew Green?

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

I was coming to that. Let me be clear: Kew will focus on the seven residential properties on Kew Green. Kew has no immediate plans beyond the proposals for those properties. Obviously, the Bill does not stop future plans for any other property on the non-core estate, but Kew wants to ensure that the seven residential properties on Kew Green do not continue in their current unsatisfactory condition. The Bill is about maintenance of the non-core estate, and the whole basis of what we are doing is to enable those parts of the non-core estate not required by Kew—

Photo of Viscount Eccles Viscount Eccles Conservative

I am sorry to interrupt my noble friend. He has used the phrase “non-core” three times. How does he define that? Until you define your attitude to the six general functions in some detail, you cannot come to a judgment on what is core and what is not. Some properties on Kew Green are occupied by the Royal Botanic Gardens, Kew. Some of them, such as Cambridge Cottage, are historic. If I may say so, we must not get carried away with the idea that what is core and what is non-core is obvious. It is not at all obvious at Kew, which is a very complicated institution. What is core and non-core changes with fashion. Now, Extinction Rebellion is changing things too.

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

It would be more helpful if I could develop my arguments. It is important that I set out the legal point. My noble friend Lord Eccles is right that I should perhaps get a better legal definition of “non-core”. I am trying to explain, in what I would call lay language, that Kew has recognised that these properties on Kew Green are not required for the fulfilment of its functions, as set out in the National Heritage Act. Here, we are seeking to enable Kew to use the additional income to meet the challenges that I know my noble friend Lord Eccles had to resolve when he was chairman, as will the current and future chairs. I like his point, which is how in these difficult times we can invest more proactively in Kew.

Photo of Baroness Kramer Baroness Kramer Liberal Democrat Lords Spokesperson (Treasury and Economy)

Perhaps I may just ask the Minister a question purely for clarification. I am not the slightest bit fussed about the seven houses on Kew Green as they are all under conservation orders and the local council will certainly be able to prevent any inappropriate development. We can also count on the fact that, no matter what the political colour of the council, the residents will make sure that that happens. What I am trying to understand is what else might be non-core. Does that include the parking area, or is it part of the non-core estate? Is that where we should be focusing our general concern?

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

As I say, it goes back to those areas. I want to pin down this point. This is absolutely not about suddenly cherry-picking: “That looks like a nice site; that would be quite lucrative”. It is about enabling longer leases to ensure that there is more money for Kew to do these things. Part of the issue, shall we say, is accessibility for the public, whether that be parking or other general facilities. Yes, such things are part of enabling scientific endeavour, but they also enable the nation to appreciate what Kew does by way of visiting the gardens.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

My Lords, could non-core—

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

I am sorry, but would it not be easier for me to develop the argument, because much of this will I hope be covered? I think that that would be more constructive.

I want to go back to the advice I have received, because my response to my noble friends and the amendment hinges on that. These leases of the land at Kew are not regulated by the Charities Act 2011 as the land is Crown land, so in its current form the amendment is not an appropriate safeguard. Kew Gardens is land held by the monarch in the right of the Crown and is Crown land currently managed by the board of trustees and Defra. The board was established under Section 23 of the National Heritage Act 1983. While that Act gave the board a power to purchase land and other powers to deal with land that it purchased, it did not transfer title of the land at Kew Gardens to the board, nor did it give the board any powers of management over the land at Kew.

In granting leases on the land at Kew Gardens, the Secretary of State will act as the freeholder on behalf of the Crown. The Bill does not create the power to grant a lease, merely to make a longer one. Since title is not held by the charity RBG Kew, these leases will not be regulated directly through charity law. It is not the intention of the Charities Act 2011 that the Charity Commission will be consulted on the management of Crown land as it relates only to the disposal of property that is in the title of a charity, which the Crown land at Kew is not. As I say, having taken counsel’s advice, it is important that I say this.

The Secretary of State, in exercising his powers of management of the land at Kew, balances the freedoms to manage Crown land free of any restrictions. Parliament’s intention was that the land should now be occupied by Kew for use in furtherance of its general functions under Section 24 of the National Heritage Act. However, in reality proposals will be initiated by Kew and in making the decision to support the grant of a lease, the trustees would act in the best interests of Kew, in line with the National Heritage Act and pursuant to the framework agreement between Kew and Defra. That agreement was laid before both Houses of Parliament last year, and I will circulate the framework document to my noble friend Lord Eccles and indeed to all noble Lords who have spoken in this debate.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

Could I just clarify something? Does non-core land include land on which planning permission can be secured to build new residential developments?

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

All land within Kew and the Crown land, including non-core land—I used that unofficial language, shall we say, to describe the sorts of properties for which Kew recognises that it would wish to avail itself of this legislation—is subject to many protections. I digress slightly from these leases, but for instance if Kew, in its scientific endeavour, wanted to build a new science block or something to enable it to be ever more proactive, as my noble friend Lord Eccles said, given that this is a world heritage site with many listed buildings it would have to be in sympathy with all that. I perhaps wish I had not described it as “non-core land”, but it was a genuine attempt to distinguish between the estate—where all the functions of the National Heritage Act are undertaken, and those functions are set out in statute—and land and property, such as the seven residential buildings, that Kew does not feel it requires for its core functions and that would clearly require the protections I will unfold not only in this amendment but in others. All land that is going to be subject to this legislation has many protections.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

I understand that, but I want to press this. Could a developer, to put it bluntly, build a block of flats on the non-core land, subject to the protections?

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

No. On the land under question, one of the seven residential buildings is not listed and all the rest are. On a later amendment I will go into some detail on the conditions that there would be on the leases, because that is probably where I can explain it better. In the leases there are standard conditions and those that recognise the world heritage site, the listed nature and all those things, so any proposal by anyone would have to go through all those hoops. If the noble Lord is asking me what would happen if someone came along and said, “I would like to build some modern flats in the place of those listed buildings”, I cannot see—I am happy to put this on record—the local authority agreeing to it, anyone saying that this was the proper function, or the Secretary of State granting a lease.

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

The protections are available for ever to ensure that this would not be the case.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

But it cannot be ruled out.

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

I think it can be ruled out, because the protections are absolutely, fully in place for the land at Kew, whether the seven residential properties—

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

I am not forgetting those, because they are the areas being dealt with. I am going to make more progress; I am happy to continue these considerations outside Committee.

One thing is clear: if a lease was at odds with anything, the Secretary of State would decline to grant it in the first place. With this in mind, and on the advice of departmental lawyers, the Secretary of State would not grant a lease that was in any way contrary to Kew’s objectives as set out in the National Heritage Act 1983, the governance document of Kew Gardens dated July 2017, and the Kew framework document dated June 2018, since this would risk placing the board in breach of its own statutory obligations and the framework and governance documents. For example, no lease of any land or building could ever restrict public access to the plants, collections and other facilities at Kew as this would be contrary to Section 24 of the National Heritage Act 1983.

The Secretary of State is accountable to Parliament for the activities and performance of Kew. Under the National Heritage Act 1983, a ministerial direction can provide a further mechanism as regards the management of Kew in any manner the Secretary of State chooses, from time to time. This could, if necessary, enable the Secretary of State to manage Kew’s activities with respect to leases of this kind.

I am very interested in the debate that has ensued and happy, with lawyers, to have any meetings that any of your Lordships would find helpful. This amendment would involve the Secretary of State making considerations under the Charities Act that are not relevant to Crown land. Given the legal situation surrounding Kew leases, there are sufficient safeguards in place to protect Kew.

I have an answer now on what we mean by non-core land—I now regret going out on my own and describing it in that way. There is no legal definition of “non-core”. Kew is Crown land and comprises the entire estate within and around the gardens and Kew Green. “Non-core” is how we describe an asset that is not delivering Kew’s functions under the National Heritage Act 1983. Protections will apply in law regardless of the term used.

I will look again at some of the key points raised, but I want to emphasise that the whole purpose of this legislation, in moving from the figure of 31 to 150, is to release funds for Kew to do what we all want it to do: supply solutions to many of the issues facing our ecosystems. It is science that I will always put first. I have problems with the amendment because of the legal situation, and although I am very happy to continue discussions with my noble friends to provide reassurance, I hope my noble friend will feel able to withdraw his amendment at this time.

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Conservative 4:15 pm, 21st May 2019

My Lords, my noble friend the Minister has been extremely courteous and accepted interventions from all sides of the House, which is very good of him. He may be regretting the briefing he provided for us before Second Reading, at which he was unwise enough to say, “I hope some of you are going to take an interest in this Bill and we get enough speakers”. He may have put his head into the lion’s mouth there.

I thank my noble friend Lord Eccles, who brings a wealth of experience and insight to this and brought out the difficult balances that are to be struck—no one is suggesting that what we are trying to tackle is easy. To the noble Baroness, Lady Bakewell, I say that of course we understand that Kew needs the money; but we need to make sure there are appropriate checks and balances and that we are not chasing the money too much. I am grateful to the noble Baroness, Lady Jones, for her general support.

My noble friend made three important points. First, he said that the focus is on seven residential properties but there are no immediate plans to go beyond that. That is a careful set of words. Secondly, he was very careful and courteous also in dealing with the “core” and “non-core” point, brought up by my noble friend Lord Eccles.

Finally, as I understand it, the legal advice is that this amendment does not have effect because the Crown land has no link with a charity and therefore with the Charity Commission. I am therefore not quite sure why the department needs to sign an MoU to ensure compliance with charity law because if it was just—

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

This is because the MoU relates to the plants, collections and functions, not to the land.

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Conservative

That is very helpful. So the MoU is narrowly drawn in that sense. I am grateful for that. I want to make sure that somewhere in this legislation we know how big a set of opportunities we are offering Kew and make sure that there are no unnecessary opportunities for side deals which may release funds for Kew in the short term in a way that does not deal with its long-term objectives, which we all support. We will carry on the discussion. In the meantime, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.