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

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.