Kew Gardens (Leases) (No. 3) Bill [HL]

Lord Hodgson of Astley Abbotts Excerpts

2nd reading (Hansard): House of Lords
Tuesday 7th May 2019 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I am the 10th speaker on a two-clause Bill and am succeeding my noble friend Lord Eccles, who is a past chairman of the Royal Botanic Gardens. I am aware that I should not trespass on the House’s kindness and generosity by reploughing ground that has already been extensively ploughed.

I am not a plantsman—I can just about distinguish a daisy from a buttercup—so my commenting on Kew’s professional competence would be otiose, to say the least. As many noble Lords have said, Kew has a worldwide reputation for excellence. I am a strong believer in the virtues of soft power in the modern world, and as other noble Lords have pointed out, in any list of our soft power assets, Kew would be at the top. Indeed, in preparation for this debate, having printed off the annual report of Kew, I could not help but be impressed by the quality and detail of the engagement with the public and the encouragement of volunteering, so I have an instinctive sympathy with the Bill’s strategic aim.

However, picking up a theme begun in earlier speeches, I want to be reassured that the plans envisaged in the Bill are properly thought through and have the appropriate checks and balances. I was extremely grateful to my noble friend for addressing this topic in some depth in his opening remarks, which, as an expert Minister, were as smooth as cream. One could not envisage circumstances in which any disagreement could possibly arise between the various authorities and powers involved with Kew.

As my noble friend explained, the Royal Botanic Gardens is a charity, but a charity with a difference: it is an exempt charity. It is worth the House being clear what this means. As a review of the Charities Act 2006 said:

“The exempt charities are those institutions that are comprised in Schedule 3 of the Charities Act 2011 … They are institutions that are charities but which are exempted from registration with the Charity Commission … They were granted this exemption because they were considered to be adequately supervised by another body or authority”.


Confusingly, although in practice,

“exempt charities are bound by charity law and can access the tax breaks associated with charitable status, they are not required to”—

indeed, they are not permitted to—

“register with the Charity Commission, and so are not subject to the same reporting requirements as other charities (e.g. submission of accounts). It follows that, though the Charity Commission has ultimate responsibility for the regulation of the entire charity sector, it has little visibility over this large group”:

the exempt charities, many of which have very significant assets—museums, higher education institutions, charitable and social housing projects and so on.

This is not the only confusion. To qualify as an exempt charity, a charity must have what is called a principal regulator. In the case of Kew that is Defra, under the supervision of my noble friend. That term “principal regulator” creates an unhelpful public perception of what the role entails. The legislation does not—I repeat, not—confer regulatory powers on the principal regulator, which in this case is Defra. It gives it the simple duty to promote charity law alongside its existing role. All the regulatory compliance and enforcement powers rest with the Charity Commission. So if my noble friend’s department were to believe that there had been charitable mismanagement at Kew, it could do absolutely nothing about it directly. All it could do would be to act as a traffic policeman and wave the case through to the Charity Commission for investigation, and enforcement if necessary. Your Lordships will see that this is a rather muddled situation with a confused regulatory hierarchy. As Clausewitz, the great military strategist, said, “Better a bad general than a divided command”. This is a divided command if ever I saw one.

When my noble friend comes to wind up, could he answer the following points? At the heart of the Bill is the encouragement of Kew to make better use of its property assets and general estate. Property is an issue of importance under charity law. Sections 117 to 128 of the Charities Act 2011 lay down controls on the use of land by a registered charity. Indeed, Section 117 is entitled, “Restrictions on dispositions of land: general”. First, is it intended that any actions taken under the provisions of the Bill will comply fully with the requirements of those sections of the Charities Act? Secondly, what organisation will actually grant the new leases envisaged by the Bill?

Perhaps I may refer your Lordships to the excellent briefing note produced by the Library, which says:

“The freeholds for the land and buildings used by RBG Kew have different ownership. The Board of Trustees only holds the title for the Wellcome Trust Millennium Building and adjacent land at Wakehurst Place (including Havelock Farm) … The Crown owns the land and buildings at Kew, while the National Trust owns the freehold of the remaining land at Wakehurst Place”.


There therefore appear to be three possible landlords or lessors: the trustees of Kew, the Crown and/or the National Trust. If the leases are to be granted by the Crown, will the Crown itself be subject to charity law?

I then draw the House’s attention to the provisions of the National Heritage Act 1983. Here I start to work on the point raised by the noble Lord, Lord Whitty. It contains a whole section devoted specifically to the Royal Botanic Gardens, as several other noble Lords have pointed out, under Schedule 4 and Sections 23 to 29, particularly Section 24. A number of subsequent amendments may have overtaken my points and made them irrelevant, but I think these provisions are still outstanding. In Section 24, subsection (2) states:

“For those purposes the Board may, subject to the provisions of this Act - (a) enter into contracts and other agreements (including agreements for the Board’s occupation or management of land)”.


There is no mention of charity law. Subsection (3) says:

“Subject to the provisions of this Act, the Board may do such things as they think necessary or expedient … (c) otherwise for the purposes of their functions”.


That is a very wide and permissive provision. Finally, subsection (5) says:

“If the Minister directs the Board to exercise functions specified in the direction in relation to land so specified, the Board shall exercise them on his behalf in such manner as he may from time to time direct”.


These are pretty wide powers and I am not clear how they are going to mesh with the provisions of the Charities Act 2011, with which the Royal Botanic Gardens at Kew should be complying, as an exempt charity.

Will my noble friend lay out in detail how his department will be supervising—riding herd—the execution of the plans provided for in the Bill? He kindly had a briefing meeting with noble Lords last week when I explained that my concerns flow from my experience with my house at Ludlow in Shropshire. The Forestry Commission proposed to give a commercial operator, Forest Holidays, the benefit of a 125-year lease. This arrangement was approved by Defra without either the commission or the department appearing to have any comprehension of the value of the concession they were granting. The noble Baroness, Lady Kramer, made this point. We surely do not want to risk this happening again.

In conclusion, as I said at the outset, I am not against the provisions of the Bill; nor do I attack the Royal Botanic Gardens at Kew in any way. However, I am for the charity sector, which is a great feature of our national life and engages the support of so many members of society. The sector has taken some blows to its reputation in recent years: tax avoidance, overaggressive fundraising, spectacular loss of financial control, malpractice of staff in charities working overseas and controversy over the level of executive salaries. Sadly, today’s Times carries an article headed, “Charities pay the price for a loss of trust”. Whenever there is trouble in the sector, any other parties who may have had some peripheral involvement in or responsibility for the particular transaction vanish like snow off a dyke. If there were to be trouble at Kew, I fear that the response of my noble friend’s department would be, “Nothing to do with us, guv. Call the Charity Commission. It is sorting it out”. I am anxious to minimise the chances of further blows to the sector’s reputation, hence my search for further reassurance on the regulatory aspects of the Bill, which, in principle, I support.