Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham & Amersham, Conservative)

I beg to move amendment No. 11, in clause 2, page 1, line 15, at end insert—

‘(e) keep under review the adequacy of retirement provision for older people in Wales.'.

Janet Dean (Burton, Labour)

With this it will be convenient to discuss the following amendments:

No. 18, in clause 2, page 1, line 15, at end insert—

‘(e) work towards the elimination of elder abuse'.

No. 12, in clause 2, page 1, line 16, leave out subsection (2).

Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham & Amersham, Conservative)

We now move on to clause 2, which sets out the general functions of the commissioner. Although this aspect of the matter has been scrutinised to an enormous extent, for me the question remains whether the commissioner has enough power to get to the heart of the matter in relation to the issues and problems that face older people.

The functions of the commissioner set out in clause 2 are constricted, being

“exercisable only in relation to fields in which the Assembly has functions.”

The commissioner will not have the competence to consider the wider situation affecting older people in Wales. That is why I tabled amendments Nos. 11 and 12.

Amendment No. 12 would remove subsection (2). I appreciate that that would be nonsense, but the amendment is merely a vehicle to probe how the Minister envisages the commissioner gaining some real say and representational opportunities over, for example, pensions. Amendment No. 11 would set in statute a duty on the commissioner to consider the adequacy of retirement provision and pension arrangements for older people.

The commissioner does not have any locus in the Department for Work and Pensions or with regard to benefits, including housing and council tax benefits. That is a lacuna. In that area, the Department, as opposed to the Assembly, will adversely affect pensioner poverty. I hope that the amendments provide the Minister with an opportunity to set out how he envisages the job succeeding, given that the commissioner is effectively cut off from the parts of political and governmental life that cause some of the greatest problems for the older community in Wales.

Mark Williams (Shadow Minister, Education & Skills; Ceredigion, Liberal Democrat)

It is a privilege to serve under your chairmanship, Mrs. Dean.

We have added our names to the amendment moved by the hon. Member for Chesham and Amersham, and we share a healthy frustration with this legislation. If it is to proceed, and we want it to very much, the tools exist for it to do the job. We heard about some of the practical tools that the commissioner will have to do the job, but the amendments—specifically amendment No. 12—are concerned with the breadth of the commissioner’s reach and the extent of his remit. That debate endured many hours in another place and was mentioned on Second Reading, so—like the hon. Lady—I shall not discuss it for long.

We are talking about issues that have a profound effect on older people in Wales. Many range beyond the remit of the National Assembly for Wales, and responsibility rests here. Our concern is that subsection (2), which limits the commissioner’s general functions, will seriously handicap him in his attempts to fulfil his role as fully as possible. In particular, subsection (1)(d) stipulates that the commissioner may

“keep under review the adequacy and effectiveness of law affecting the interests of older people in Wales.”

Laws relating to pensions and tax credits have an enormous effect on the interests of older people in Wales, but as the Bill stands, the commissioner’s role in such issues is limited. I do not hold out much hope that the Minister will be positive towards the amendment, but if it were agreed to, it would significantly broaden the commissioner’s role. We strongly welcome the Bill, and we strongly endorse its proposals; however, we must go forward if it is to be meaningful.

On Second Reading, the hon. Member for Chesham and Amersham said that it seemed strange that the Government were introducing the position as a Wales-only role, given that the UK Government have an enormous role to play and an enormous influence over the welfare of Welsh older people. Perhaps it would have been wiser to have a UK-wide commissioner, or at least to grant the Welsh commissioner more influence over non-devolved matters, as the amendments would provide.

Amendment No. 18 stands in my name and that of my hon. Friend the Member for Montgomeryshire (Lembit Öpik). We would include in the Bill as one of the commissioner’s core functions, a responsibility to work towards the elimination of elder abuse. The inaugural world elder abuse awareness day is on 15 June. Help the Aged Wales is prominent in that campaign, and I am sure that members of the Committee will praise it and its awareness-raising agenda.

In 2004, the Health Committee filed a report on elder abuse in which it acknowledged that it was notoriously hard to estimate the scale and prevalence of elder abuse, primarily because

“Much abuse is not reported because many older people are unable, frightened or embarrassed to report its presence.”

So the extent of such abuse is difficult to quantify, but there is indeed a problem.

Abuse can take many forms—sexual, financial, medical, physical or psychological—and ruins the lives of many innocent and vulnerable people.

The Health Committee went on to say:

“Often care staff take no action because they lack training in identifying abuse or are ignorant of the reporting procedures... The lack of training in issues relating to elder abuse...is encountered in all the settings in which abuse occurs.”

Crucially, it concluded:

“we strongly endorse any measures that make available advocacy services for older people.”

I strongly congratulate the Government on the establishment of an older people’s commissioner. The commissioner will be in a unique position to combat elder abuse. As an independent advocate for older people, he will be able to provide excellent counsel for those in need and guidance to service providers on how to recognise and deal with the problem, and to issue strong recommendations to the Assembly on how to tackle elder abuse at policy level.

I am sure that many Members here agree with me that making the eradication of elder abuse in Wales one of the commissioner’s core tasks would send a clear message that our political leaders are alive to the severity of the problem and are determined to stamp it out. On that basis, in pursuing the amendment, I hope to see this important provision put into the Bill.

Adam Price (Spokesperson (Defence; Transport; Economy & Taxation; Miners Compensation; Regeneration; Trade & Industry); Carmarthen East & Dinefwr, Plaid Cymru)

I rise not just to give the two principal Front-Bench speakers some well-earned rest but because I think that the amendment and some of those that follow it go to the heart of the difficulty with the Bill. We all agree with the principles behind it, but the crux of the disagreement among us is devolution and how the Bill deals with it.

There is a fundamental inconsistency in the way in which the Bill assigns powers to the commissioner. Devolution was meant to make democratic accountability easier, simpler and clearer. However, those of us who are proponents of devolution and good governance generally should be alive to the danger. Because of the at times complex nature of the settlement in Wales, devolution can lead to greater confusion. Confusion leads to frustration, and frustration leads to a sense of exasperation with politics in general, although we shall not mention Blaenau Gwent in these proceedings.

The commissioner will be able to make representations on anything relevant to older people in Wales. I was corrected on the record by the Minister, who said that the commissioner will have the power to commission research in non-devolved matters, but they will not have the power to produce a formal report. There lies the lacuna: the commissioner will have the power to make representations but not the power to  conduct a formal review or lay a formal report before the Assembly or directly before Westminster.

There are a number of problems, one of which is that there will no longer be any practical formal mechanism for taking up representations on non-devolved matters. During the passage of the Government of Wales Act 1998, there was a lot of talk about joint ministerial councils—a kind of summit of the islands involving Ministers from the far-flung reaches of the United Kingdom. Ministers for education, health and devolved services from Wales, Scotland, Northern Ireland and even the Channel Islands and the Isle of Man would be invited to ministerial jamborees to share best practice and so on.

It seems to me that such joint ministerial councils have ceased to exist. I am not aware that they meet now on a regular basis. Therefore, there is no formal mechanism for such representations. Perhaps that is because in Wales, Scotland and Westminster the same party is at the helm—just lift the telephone and there are informal representations—but without the formal mechanism, there is no guarantee that those representations will be carried across. That is one of the problems.

The second problem is that the Bill flies in the face of what everyone in Wales is saying. Where is the democratic devolution in the Bill? All the major statements made have strongly supported the principle of giving the commissioner the right to direct access to Westminster, or at least the right to have representations passed on automatically.

There were two major consultations on the proposal. One consultation was on the advisory group’s report, and the second on the draft Bill. In both instances the vast majority of consultees came out strongly in favour of strengthening the commissioner’s role in non-devolved areas. All the major stakeholder organisations in Wales came out in favour of giving the older people’s commissioner those strengthened powers: Help the Aged, Age Concern, Swansea Network 50-plus and, the Minister will be interested to hear, the Carmarthenshire Pensioners Forum; I am sure that he took due note of the constituency interest.

Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham & Amersham, Conservative)

The RNIB?

Adam Price (Spokesperson (Defence; Transport; Economy & Taxation; Miners Compensation; Regeneration; Trade & Industry); Carmarthen East & Dinefwr, Plaid Cymru)

Indeed, the RNIB, and some academic experts as well—Professor John Williams, I noted— and the Parkinson’s Disease Society. I could go on, because there were dozens of consultees that supported the advisory group’s own recommendations. The Welsh Assembly Government’s own advisory group recommended that the commissioner should be given a stronger locus in non-devolved areas, as indeed—as I pointed out on a previous occasion—did the Health and Social Services Committee of the National Assembly for Wales, where there is a Labour majority. It is puzzling, to say the least, that the Westminster Government would seek to frustrate the declared will—

Janet Dean (Burton, Labour)

Order. We seem to be drifting into the next group of amendments. Perhaps the hon. Gentleman would like to combine the two groups in one debate?

Adam Price (Spokesperson (Defence; Transport; Economy & Taxation; Miners Compensation; Regeneration; Trade & Industry); Carmarthen East & Dinefwr, Plaid Cymru)

I happily stand corrected. I am referring to amendment No. 12, which would remove the constraints.

Janet Dean (Burton, Labour)

I accept that the hon. Gentleman is speaking to the amendment referred to, but much of the debate goes on to the next group, so it may be as well to combine the debate on both and take the votes separately.

Adam Price (Spokesperson (Defence; Transport; Economy & Taxation; Miners Compensation; Regeneration; Trade & Industry); Carmarthen East & Dinefwr, Plaid Cymru)

I am prepared to accept that. I have no intention or desire to repeat the comments that I am making now.

Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham & Amersham, Conservative)

On a point of order, Mrs. Dean, would you clarify for me what your ruling was from the Chair? I think we are discussing amendments Nos. 11, 18 and 12, but amendments Nos. 20, 29, 25 and 27 are in a group on which the hon. Liberal Democrat spokesman will leads. Are we now moving into a phase where we are discussing all of those amendments together, in which case the Opposition may need to make some more remarks, or are we going to stay with amendments Nos. 11, 18 and 12, and allow a debate to follow on the next group of amendments? I was unclear and unsighted as to what you meant.

Janet Dean (Burton, Labour)

We should combine the groups. If those who have already spoken, including the Liberal Front-Bench spokesman and the hon. Lady, would like to come back and speak to the group as a whole, we will take the vote separately. So with this group it will be convenient also to discuss the following amendments: No. 20, in clause 2, page 1, line 18, after ‘Assembly', insert

‘and to Her Majesty's Ministers'.

No. 29, in clause 2, page 1, line 18, after ‘Assembly', insert

‘and to the Secretary of State'.

No. 25, in clause 8, page 5, line 33, after ‘Assembly', insert

‘or to the United Kingdom Government'.

No. 27, in clause 12, page 8, line 4, at end insert—

‘(d) the United Kingdom Government.'.

Adam Price (Spokesperson (Defence; Transport; Economy & Taxation; Miners Compensation; Regeneration; Trade & Industry); Carmarthen East & Dinefwr, Plaid Cymru)

Amendment No.12 speaks to the generality of the subject of the way in which non-devolved matters should be dealt with. In the Assembly, John Griffiths, the Deputy Minister for Health and Social Services, has argued that the nature of the devolution settlement imposes on the commissioner the need to go through the Assembly as an intermediary—in his words—rather than being able to engage directly in non-devolved matters.

I would argue strongly that that is not the devolution settlement. Section 30 of the Government of Wales Act 1998 gives the Assembly the power to have a view on anything, including non-devolved matters. Why should the older people’s commissioner, who has statutory power, be dealt with any differently in terms of their ability to deal with non-devolved matters?

The danger is that we are creating a hierarchy of commissioners. If there is subsequently a commissioner for older people in England or the UK, as we have seen  with the example of the Children’s Commissioner, there could be confusion as to where the principle locus resides for older people. Is it territorial or functional? We need clarity, not least for older people in Wales.

I note that the Government’s own social exclusion unit report, “A Sure Start to later life”, which looked at the problems of older people, concluded that one problem that older people experienced in dealing with public agencies was that they did not know who to contact. They had to go all over the shop to get information and services. That was speaking at the local level. There is a danger that we could be replicating that confusion by creating that arbitrary distinction between devolved and non-devolved matters.

Older people want a one-stop shop for advocacy, complaints’ procedure and review of policy. We should give them that single port of call—that single point of contact—in the form of an older people’s commissioner who would have an unfettered right to review policy, conduct formal reviews and present reports on devolved or non-devolved matters to promote good governance for the older people of Wales.

Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham & Amersham, Conservative)

Thank you for clarifying my earlier point of order, Mrs. Dean. Amendment No.29 falls into that second group that we are considering. Subject to any comments made by the Liberal Democrat spokesman on his amendments, I may want to intervene quickly.

My amendment No.29, after the word “Assembly” adds

“and to the Secretary of State”.

That makes the commissioner competent to make representations to the UK Government, through the medium of the Secretary of State. I was not sure how to express it otherwise.

When I was reading, “When I’m 64 and more: A report from the Advisory Group on a Strategy for Older People in Wales to the National Assembly of Wales”, which was part of the thinking behind the older people’s commissioner, it was obvious that we are setting up someone to fail here—at least as regards 50 per cent. of the job that needs to be done.

One has only to look at that document and its recommendations. I want to draw the Minister’s attention to some of the recommendations in the document “When I’m 64”, because they illustrate how the commissioner has been given the capability to do half a job, in the light of the restrictions that have been placed on his or her competence.

Under the recommendations,

“the UK Government should ensure that consumer protection measures are in place for older people”,

including advice, guidance and support. If that is a UK Government responsibility, and if the commissioner may not make representations about it at UK Government level, only half a job will be done, in the context of the recommendations that are going only to the Welsh Assembly Government. Similarly, in the context of age discrimination in employment, the spread of good practice and the concept of the age of entitlement as opposed to the age of retirement are in the sole gift of the UK Government. They are not  devolved matters for the Welsh Assembly. The commissioner does not have a voice at that table, according to clause 2.

The document makes recommendations about pensions and benefits. What is wanted is that the Government should place less reliance on means-testing in benefit policy and practice, and make

“higher provision of a more adequate level of state pensions to sustain decent standards of living.”

If there is no mechanism or conduit by which the commissioner can make representations on those fronts, once again, half a job will be done.

A mechanism is also needed whereby the commissioner can make representations to the UK Government on current strategies, such as on tackling crime. That has an effect on older people. More and more problems arise for people of the older generation because of criminal activity; ASBOs are relevant to that. I am pleased to welcome my hon. Friend the Member for Preseli Pembrokeshire back here, hot-foot from his timely debate on the merger of police forces in Wales, which the Opposition very much oppose; when it comes to making representations to the Home Office about crime, the Bill provides for no mechanism or platform to enable the commissioner to do so.

The hon. Member for Carmarthen, East and Dinefwr (Adam Price) more or less said, “Things are okay while we have a Labour Government in Wales, Scotland and Westminster, but it may not always be like that.” It is certainly not okay in my book. Things will change, and the informal nod and wink or the opportunity to sidle up at a champagne reception thrown by some wealthy donor at the Labour party conference will no longer be available for people to make their representations. A formal mechanism will be necessary for the functioning of the office—an office that we all welcome, look forward to seeing in operation and hope will be as successful as that of the Children’s Commissioner.

If the commissioner cannot make the necessary representations at Westminster level, we shall not get Wales and Westminster working together in harmony. We shall have a huge gap in the functions of the commissioner on what are probably some of the most important subjects affecting older people. They affect everyone, but the older generation in particular. In speaking to amendment No. 29, I am attempting to seduce the Minister down the road of allowing the commissioner a formalised platform, set in statute, for making representations to Westminster.

Mark Williams (Shadow Minister, Education & Skills; Ceredigion, Liberal Democrat)

I shall speak to amendments Nos. 20, 25 and 27. The issue is, again, the breadth of the commissioner’s role. We have tabled the amendments because we want that role to succeed and we want the commissioner to carry fulfil his functions as well as possible. The Government’s enormous influence on the interests of older people in Wales means that we must ensure that the working relationship between the commissioner and the Government is adequate and appropriate and, critically, that it will stand the test of time.

Amendment No. 20 would allow the commissioner to make direct representation to the Government. I have read the proposals in detail and it seems that there  are two gatekeepers, which will discourage people from seeking redress for their concerns and grievances. A more direct approach necessitates people’s complaints going directly to UK Ministers. The commissioner’s words must follow a convoluted path via the Welsh Assembly and the Wales Office before reaching the relevant Minister.

The public need to have confidence. We are told that we are trail-blazing. We are; the objective is laudable, but the crunch will come when people come to constituency surgeries expecting issues to be pursued by the commissioner. There will be bewilderment and scepticism about whether recommendations on UK-wide issues will be taken seriously. We are still convinced that the commissioner should have the formal right to make representations direct to UK Ministers.

Similarly, our amendment to clause 8 would allow the commissioner to offer guidance and assistance to someone making a complaint or representation to the Government or one of their agencies. Amendment No. 27 would allow the commissioner to issue guidance to the Government and their agencies. I commend the amendments to the Committee.

Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West & South Pembrokeshire, Labour)

Because of the way in which we have decided to proceed, I shall talk to the earlier amendments, which do not refer to the non-devolved issue, and move on to the relationship between the commissioner and his or her representation on non-devolved matters.

Amendment No. 11 seeks to provide the commissioner with a general power to keep under review the adequacy of retirement provision for older people in Wales. The term “retirement provision” is rather broad and could encompass a wide range of issues from financial planning, including occupational, private and state pension financial provision, to health promotion and housing.

Clauses 2 and 9 provide an appropriate and balanced remit for the commissioner on those issues. For example, the commissioner could—this is important and the hon. Member for Carmarthen, East and Dinefwr discussed it on Second Reading—undertake research and make representation on the adequacy of state pension provision for older people in Wales or on the steps taken to encourage personal financial provision for retirement and the regulation of the private pension sector, including concerns about pension mis-selling. There is nothing to stop the commissioner doing that research and making representation on those non-devolved issues.

However, we must not forget that the commissioner’s primary role is to protect those who receive or are in need of services as older people in Wales. Matters arising from the private provision of goods and services remain the responsibility of the Office of Fair Trading. It would simply not be appropriate for the commissioner to take action on individual private financial queries, nor would his or her other powers in the Bill support such action. Nevertheless, the commissioner will be able to direct older people to the most appropriate body to deal such inquiries—[Interruption.] Does the hon. Member for Chesham and Amersham want to intervene?

Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham & Amersham, Conservative)

I thought the Minister said that under clause 9 the commissioner can carry out research. In fact, I can see that he can undertake and commission any research and/or educational activities. However, surely subsection (2) acts as a brake so that the commissioner can use his or her powers to review, to encourage best practice and to promote awareness of interests only in relation to matters in which the Welsh Assembly has functions, so he has no route to Westminster, even with the research that he has carried out. Perhaps the Minister can enlighten me on that.

Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West & South Pembrokeshire, Labour)

The hon. Lady said that the commissioner had no powers to go direct to Westminster, and that is accepted. His powers of representation are to the Assembly, and I will come on to that later. It might be helpful if hon. Members looked at the exchange of letters, which I have laid on the Table for the Committee’s use, about how representations from the commissioner to the Assembly would work.

Amendment No. 18 would give the commissioner a general power to work towards the elimination of elder abuse among older people in Wales, but it is not necessary because the Bill already provides for the commissioner to work towards that aim. Paragraphs (a) and (b) of clause 2(1) allow the commissioner to promote awareness of elder abuse, as well as measures to eliminate such abuse, and they will support and enable his work in that area. The commissioner will also have extensive powers to review the discharge of functions by key bodies and whistleblowing arrangements. The Bill therefore already makes strong provision for dealing with the elder abuse, and it is difficult to see what the amendment would add to the commissioner’s existing powers.

Amendment No. 12 relates to the non-devolved functions, and hon. Members can take it as read that my response applies also to amendments Nos. 20, 29, 25 and 27, which also relate to those functions. The amendment would remove the restriction that the commissioner can exercise his general function in clause 2(1) only in relation to devolved matters.

Clause 2(1) provides for the commissioner to

“promote awareness of the interests of older people in Wales and of the need to safeguard those interests...promote the provision of opportunities for, and the elimination of discrimination against, older people in Wales...encourage best practice in the treatment of older people in Wales”

and review

“the adequacy and effectiveness of law affecting”

their interests. In each case, the commissioner’s role is restricted to matters in which the Assembly has functions.

As the Secretary of State and I explained on Second Reading, we have proposed the arrangements in the Bill because the commissioner is being established as a Wales-only commissioner, and he or she will act in the interests of older people in Wales. It would not be appropriate for a commissioner established by the Assembly and for Wales to exercise his general powers directly in relation to non-devolved matters. Non-devolved functions are properly the responsibility of the UK Government, not the Assembly. Under the existing Government of Wales Act, specific provision exists for the making of  representations by the Assembly about any matter affecting Wales. The commissioner legislation has been drafted to have close regard to the devolution settlement. The proper constitutional route for representations under that settlement would be via the Assembly, as the elected body with democratic responsibility for the people of Wales.

On Second Reading, the Secretary of State also referred to the exchange of letters between myself and Assembly Ministers, copies of which have been placed in the Library and on the Table. Those letters show our commitment to ensuring that the process of dealing with the commissioner’s representations is effective.

Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham & Amersham, Conservative)

Can the Minister tell me when those letters were made available in the Library?

Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West & South Pembrokeshire, Labour)

I cannot, but I would have assumed that it was when they were discussed in the Grand Committee in the other place. I understand that that is the position.

Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham & Amersham, Conservative)

I did not have the advantage of seeing the letters before, although they are very helpful. Our current thinking is set out in an attached note, but it does not appear to be with the letter from Brian Gibbons, so we are slightly unsighted.

Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West & South Pembrokeshire, Labour)

I shall make arrangements—I hope by this afternoon—for that note to be made available. I am grateful to the hon. Lady for her thanks. I wanted to make as much information available to the Committee as possible, and I am sorry that that note is not available.

It may be helpful if we move on to the note. During the Grand Committee in the other place, we made public an exchange of letters between me and Assembly Ministers on how the procedure for representations about non-devolved matters would work in practice. In brief, the Assembly Ministers explained that they intend to put in place a system, such as a memorandum of understanding or concordat between the Assembly Government and the commissioner, to set out both parties’ expectations about the way in which the commissioner’s representations will be handled between them. It is intended that the system will set out service standards, such as time taken to respond or publication of representations and responses, as opposed to its guaranteeing a favourable outcome for individual representations.

In my reply, I reiterated my willingness and that of the Secretary of the State to meet the commissioner to discuss any problematic non-devolved issues. I also undertook to ensure that any representations made by the commissioner via Assembly Ministers are raised with or passed on to the relevant UK Department and given serious consideration.

It is interesting that the hon. Member for Preseli Pembrokeshire has just returned from a debate on policing in Wales. It shows that, when matters affect the people of Wales, the Assembly is not backward in coming forward to make representations and enter discussions with the relevant UK Department about the views of  the people of Wales. That is just one example, but there are many others in which the Assembly, a Committee of the Assembly, or Welsh Assembly Ministers make regular representations to the UK Government on a range of issues. Given that track record, I see no problem at all with representations being forcefully made and proper responses from the relevant Department being received.

David Davies (Monmouth, Conservative)

Does the Minister not agree, however, that on a technicality the Welsh Assembly has a direct responsibility for social justice and for setting the police precept? It is not the least bit surprising that it would comment on police mergers. It has a direct responsibility for them.

Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West & South Pembrokeshire, Labour)

The Assembly has a direct responsibility, but when one considers the full aspect of the police authorities’ responsibilities and operational activities in Wales, it is relatively small. I just use it as an illustration. The Assembly, its Committees and its Ministers make regular representations, which UK Departments take seriously. I do not see a problem with the proposal before us, particularly as, following the exchange of letters, it is for a clearly set out protocol and concordat between the Assembly and the commissioner about how such non-devolved issues, and any representation he may make will be taken forward.

The procedure that the Bill puts in place will safeguard the devolution settlement and provide the commissioner with clarity about his responsibilities. I and the Assembly Government are committed to making the process work in the interests of older people in Wales.

Either the hon. Member for Carmarthen, East and Dinefwr or the hon. Member for Chesham and Amersham—I cannot remember which—asked what would happen if one of the Governments were to change. Any Government will remain accountable to the public in Wales or the UK for their decisions, as I have outlined. The Government’s approach is sensible. It is in line with the constitutional arrangements that exist in the Government of Wales Act and in this Bill.

The hon. Member for Carmarthen, East and Dinefwr also raised a point that others in the consultation raised. It was about a one-stop shop, so that people are not confused about the person to whom they should make complaints or representations. I understand his point. Individual older people will not need to judge who they would have to go to if they had an issue to raise. If someone comes to the commissioner with a problem, the presumption will be that the commissioner will do whatever he can to help. In effect, he is a one-stop shop using whichever of his powers is appropriate and calling on the assistance of other agencies and expertise as required.

There is no suggestion that older people will require an account of which power the commissioner is using on which occasion. If we talk about more devolved issues, we have established, for example, that he can carry out research into the state pension provision. He can make representations to the Assembly on those matters. We have set out how those representations would then be carried forward to the relevant UK Government Department.

It is a fundamental issue, as the hon. Gentleman and the hon. Member for Ceredigion (Mark Williams) both said, concerning the nature of the legislation. However, we have to remain within the current constitutional settlement. Accountability is clear. The important matters which hon. Members raised about the representations that the commissioner can make on non-devolved matters are clear.

The exchange of letters confirms that both the Assembly and we in the Wales Office take this issue seriously. We want it to work. We do not want to fetter the commissioner. He can make those representations and they will be taken seriously by the UK—

Adam Price (Spokesperson (Defence; Transport; Economy & Taxation; Miners Compensation; Regeneration; Trade & Industry); Carmarthen East & Dinefwr, Plaid Cymru)

My question is genuine. I cannot understand the Government’s difficulty with amendment No. 12 or any of the other amendments that go in the same direction. If the Government are happy for the commission to initiate research by a third party or to make representations on a non-devolved matter, why not allow the commissioner to make a formal report on that? What is the problem?

Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West & South Pembrokeshire, Labour)

Is the hon. Gentleman suggesting that it should be a formal report to the Assembly or a formal report to the UK Government?

Adam Price (Spokesperson (Defence; Transport; Economy & Taxation; Miners Compensation; Regeneration; Trade & Industry); Carmarthen East & Dinefwr, Plaid Cymru)

Either and both.

Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West & South Pembrokeshire, Labour)

In making his representations, the commissioner may not be making a formal report with conclusions at the end of it. However, he will be making his views clearly known on a matter; otherwise, why make the representation in the first place?

The case that the commissioner would make on behalf of an individual or all older people in Wales would be made in the same way that a report would be made. However, there would be no conclusions at the end of that process. The representation—the argument—would be made. It would be for the Assembly to look at and formally pass that on through the process that I described. Although it is not a report, the argument and the representation on the matter will be clear.

We return to the matter of accountability and to the fact that we have devolution and the legislation has to conform to that devolution settlement. We understand that there will be matters that the commissioner will want to take up on behalf of the people of Wales that will not be devolved to the Assembly. We have a way for him to do that within the current constitutional settlement so that the older people in Wales are properly represented by the commissioner in non-devolved issues. With those remarks, I ask the hon. Member for Chesham and Amersham and the hon. Member for Ceredigion not to press their amendments.

Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham & Amersham, Conservative)

I have listened carefully to the Minister. I am not convinced and, with your permission, Mrs. Dean, I would like to ask for a vote on amendment No. 12.

I am slightly more concerned by what the Minister said in response on the two groups of amendments; I do not know what my colleagues further down the Bench think. We are producing what I believe was described in one Welsh paper as a toothless wonder. We are in  danger of allowing something to go through that is only half-baked. Relying on a track record, which is what the Minister said of communications between the commissioner, Westminster and the Welsh Assembly Government, is not satisfactory. That track record is limited; it has existed only during the lifetime of a Labour-dominated Assembly Government and a Labour Westminster Government. We need to look beyond the current political make-up of all institutions towards a time when there may be a difference in the political complexion of those institutions or, indeed, when they could be dominated by Conservative Members in both places. I can see the looks down the Bench—other hon. Members also welcome that prospect.

It is interesting that the Minister has introduced—I have to say this—two letters that I have not had the advantage of seeing before. I would like to ask whether he will place on record exactly when they were made available to hon. Members. I have checked with other Opposition colleagues and they have not had the advantage of seeing the letters. I would like to see the “current thinking” set out in the “attached note”, which is referred to in the letter of 12 October, from Brian Gibbons to the Minister.

The exchange of letters illustrates the case exactly. The letters are between Brian Gibbons, a Labour Minister in the Welsh Assembly, to the Parliamentary Under-Secretary of State for Wales, who is a Labour Government Minister. One letter says:

“I thought it might be helpful both to you and to Lord Evans”—

who I believe is a Labour peer who speaks in the other House—

“at this stage to let you have an outline of how we envisage that the commissioner might use this power in practice”.

The exchange of letters is entirely between three people who represent the interests of Wales in Labour Governments. The return letter of 17 October, from the Parliamentary Under-Secretary of State to Brian Gibbons, carries the immortal words:

“I have also given a commitment that I will ensure that any representations made by the commissioner, via you, are raised with, or passed on to, the relevant UK Government Department as appropriate and are given serious consideration by them. That process should, of course, conclude with you and the commissioner receiving a clear and timely answer to your representation, with an account of the action to be taken or a justification for not taking action in response to the issues raised.”

How can we guarantee that? The exchange of letters is between friends—“Dear Nick”, “Dear Brian” and “Dear Brian”, “Dear Nick”. The document is saying that a commitment has been given, but it is a personal commitment on behalf of the Minister. I am sure he will discharge the duty excellently, as he always does. He is an honourable man who will discharge the duty with alacrity, but the letter appears to be part of a cosy exchange. That is just the sort of cosy exchange between friends that Conservative Members would like to remove from the realms of possibility and put as a definite function and role in the Bill.

Whatever the commissioner is seen to be saying, reporting or making representations on, it is important that there is a requirement for the UK Government to respond to issues that are raised by the commissioner, particularly when the Assembly does not have specific  functions. As the hon. Member for Carmarthen, East and Dinefwr said, those points were made by Age Concern, the Monmouthshire local health board, the county council, the older people’s strategy group, the Parkinson’s Disease Society, the RNIB and many others who were simply echoing fears that have arisen after long examination of the intentions of the Government at Westminster and the Assembly.

If anything, there have been over-consultation on the Bill; however, the Government have not taken advantage of some of the signposting from the consultees. They must have a jolly good reason for ignoring it, and I believe that they are doing so so that the commissioner’s powers will be clipped, and the commissioner will be able to do only half a job.

If we are to have a commissioner for older people, let us give that person the tools of the trade to do the job properly. Let us say that devolution is only partial and that we recognise that there are matters retained in Westminster. Let us say that this is a grown-up devolution settlement and that the commissioner should therefore be able to make representations to the UK Government about the matters that concern them. Let us expect, require and set in statute the commissioner’s ability to have a response from the UK Government. Otherwise, people will say, “The commissioner does not have teeth. How can we trust the commissioner to champion older people’s needs in Wales?”

The Minister said that I had asked on Second Reading why we had made provision for Wales, but not for England and Wales or, indeed, the whole United Kingdom. We have all identified a need, and I think that the Government have the best of intentions as regards meeting that need, but I cannot understand why we are spoiling the ship for a ha‘p’orth of tar.

The Minister has already responded, so he does not have an opportunity to do so again. However, I leave him with the fact that I should like details concerning when and where the exchange of letters was made public, and why, as far as I can establish, no Opposition member of the Committee was notified—although I am sure that that was an oversight and was not done with guilty intention. I should also like the note referred to in the letter of 12 October to be made available to the Committee.

Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West & South Pembrokeshire, Labour)

To help the hon. Lady, let me say that the letters were available in the House of Lords in mid-October for the Grand Committee. They became available in the House of Commons Library on 14 June.

Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham & Amersham, Conservative)

I am most grateful to the Minister. I am not quite sure what today’s date is—I think that it is 27 June—but I had already prepared the paperwork for this Committee and did not expect letters suddenly to be produced in the House of Commons Library. Obviously, that is my mistake, and I probably could have gone down every day to ask whether another set of letters had come from the Welsh Office, but—silly me!—I do not go there every day. However, it would be nice if Members who speak for the Opposition were informed when letters are placed in the Library,  particularly given that there is no opposition to the Bill and that we are genuinely trying to have an interesting and decent debate about the detail.

I am grateful to the Minister for that information, and it is with regret that I shall have to force a Division to show the strength of feeling among Opposition Members at the fact that the commissioner has only half a role and that the Government have not completed the exercise, but left it to a closing exchange of letters between members of the same party. I beg to ask leave to withdraw the amendment.

Adam Price (Spokesperson (Defence; Transport; Economy & Taxation; Miners Compensation; Regeneration; Trade & Industry); Carmarthen East & Dinefwr, Plaid Cymru)

I beg to move amendment No. 36, in clause 2, page 1, line 19, at end add—

‘(4) The Assembly must consider any representations received from the Commissioner and respond to the Commissioner and where the Assembly considers it appropriate to take action it shall consult the Commissioner on any action that is to be taken.'.

On this amendment we shall briefly be revisiting some of the ground just covered. The amendment places a duty on the Assembly to respond to representations received from the commissioner whereas, as we heard in the preceding discussion, the current draft of the Bill imposes no such duty—particularly in relation to clause 2(3) on non-devolved areas. I should be interested to hear the Minister’s comments, but as far as devolved functions are concerned the procedure for response will presumably be similar to that which pertains to the Children’s Commissioner. That is, the Assembly—like any other public body—will have a prescribed duty to respond within a certain period. My amendment seeks to impose a guaranteed duty to respond in relation to non-devolved areas. We need to know that, when the commissioner avails himself of the right to make representations in non-devolved areas, those representations will be passed on to the relevant UK Minister or Government body.

I, too, just received a set of letters. The note that is attached to them is being helpfully dangled in front of me by the hon. Member for Ceredigion. It goes into  some detail on the memorandum of understanding and on the precise issue of what will happen when the commissioner makes a representation on a non-devolved area. As I recall, it discusses a range of options that would be prescribed in an explicit Assembly response, including, I note with interest, doing nothing at all. That is quite often the response of the Assembly Government.

The essential problem is that a memorandum of understanding, a commitment and a friendly, courteous exchange of letters between Brian and the Parliamentary Under-Secretary—it is all first name terms in the Assembly—is all well and good, but it is no substitute for a statutory duty to respond. Ministers and Governments come and go, but people want transparency, automaticity and a guarantee of a constitutional duty on the Assembly Government to pass on comments—even if the Assembly Government do not agree with those comments—in order to make sure that the UK Government have an opportunity to consider them in due course.

The Parkinson’s Disease Society, Age Concern Cymru, Mind Cymru and a host of consultees agreed with the proposal that non-devolved matters should have some automaticity.

The previous Parliamentary Under-Secretary, the hon. Member for Islwyn (Mr. Touhig), spoke in the Welsh Affairs Committee about the scenario of the older people’s commissioner passing on representations in non-devolved matters:

“He or she would make representations to the Assembly and the Assembly would make a judgment whether it felt that it needed to take these matters up with the respective department here in London.”

That is simply not good enough. It is not up to the Assembly to consider whether the statutory commissioner’s views should be passed on. If the commissioner has statutory powers, he should at least have the automatic right to convey his representations to the relevant Minister.

Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West & South Pembrokeshire, Labour)

Amendment No. 36 seeks to ensure that the Assembly considers and responds to the commissioner’s representations. The Assembly would also have to consult the commissioner before taking any action as a consequence of one of his representations.

The Government do not believe that the amendment is necessary. Paragraph 69 of the Assembly Government’s statement of policy intentions—I hope that we have the right version, which is relevant to my point—sets out their intention to require by regulation that the commissioner’s periodic reports shall contain a summary of any representations that he might have made to the Assembly during the reporting year. That will be the commissioner’s opportunity to place on the public record his views on any perceived deficiencies in the Assembly Government’s handling of those representations.

In the case of the Children’s Commissioner, an annual Assembly debate takes place on both his annual report and the Assembly Government’s response. It is intended that the same procedure will be followed for the older people’s commissioner. That will be the opportunity for Assembly Members to hold the Assembly Government accountable for their handling of any representations made.

The hon. Member for Carmarthen, East and Dinefwr referred to the need for clarity on how the Assembly will respond to the commissioner’s representations and said that concerns had been expressed by a number of interested bodies. The Assembly Government intend that operational arrangements between them and the commissioner for older people in Wales will be governed by a memorandum of understanding. The memorandum will cover matters such as the submission of the commissioner’s estimate for the next financial year, the frequency and method of Assembly payments and so on.

As part of the process of establishing that memorandum of understanding, the Assembly Government intend to agree with the commissioner a procedure for making and considering his or her formal representations. The procedure will respect the commissioner’s independence and powers to examine relevant matters, including instances in which such representations deal with matters that are of concern to older people in Wales but for which responsibility has not been devolved to the National Assembly and remains with the UK Government.

The aim of the procedure will be to guarantee that the commissioner’s views and findings are considered carefully and openly by the Assembly and the Assembly Government. It is envisaged that it will include specified options for actions that the Assembly Government would consider taking in response to a representation from the commissioner. Such options might include referring the matter to a Cabinet sub-committee on older people based here in London, asking the national partnership forum for older people for advice or recommendations or raising the matter formally with Wales Office Ministers in accordance with section 33 of the Government of Wales Act 1998. The Assembly Government will also have the option to determine that it will not take any further action in response to a particular representation.

The procedure will include specified time limits for the Assembly Government to consider a representation and make a response to the commissioner. Unless the nature of the content of a representation dictates otherwise, we expect the process to be as open as possible to public scrutiny. With those comments I have set out how the Assembly Government intend to deal with representations on both devolved and non-devolved issues.

As I said earlier, if the commissioner remains dissatisfied with the response, or perhaps the lack of it, from the Assembly Government to a representation that he has made, he will be able to draw particular attention to it in his annual report, which will be debated in the Assembly. Again, there are substantial checks and balances to ensure that representations are taken seriously and that action is taken if required. On that basis, I ask the hon. Member for Carmarthen, East and Dinefwr to withdraw the amendment.

Huw Irranca-Davies (PPS (Rt Hon Tessa Jowell, Secretary of State), Department for Culture, Media & Sport; Ogmore, Labour)

On a point of order, Mrs. Dean. It may be helpful if I make the Committee aware that during the Minister’s comments copies of the procedure for representations that has just been discussed were handed out.

Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham & Amersham, Conservative)

Further to that point of order, Mrs. Dean. While we are discussing the documentation that accompanies the Bill, I add that I have been examining the document entitled “Commissioner for Older People (Wales) Bill: Statement of Policy Intentions for Subordinate Legislation”, which was laid out in the room today for Committee members. Another document of exactly the same name was made available to me and my office through the Vote Office. They are not entirely different but they are different documents, they are undated and there is no identification. The pagination and the paragraphs are different. As the document is a substantial part of the way in which we can scrutinise the Bill, I should like to inquire through you, Mrs. Dean, why we have not been given just one, dated document that can be identified clearly. I am willing to show you the document.

Janet Dean (Burton, Labour)

What is in the document is not a matter for the Chair.

Adam Price (Spokesperson (Defence; Transport; Economy & Taxation; Miners Compensation; Regeneration; Trade & Industry); Carmarthen East & Dinefwr, Plaid Cymru)

I am grateful to the Minister for circulating a copy of the note on the Government’s intentions. The road to hell is paved with notes on good intentions, but the note sets out clearly the Government’s thinking as of October last year. Will the Minister inform us outside the Committee whether there has been any development of that thinking in the Assembly?

I am not entirely satisfied by the Minister’s argument. I have scanned the note and I see that one of the options is to raise the matter formally with Wales Office Ministers. Presumably that would not preclude the Assembly from raising it with Ministers in other Departments and the Wales Office is simply a conduit for subsequent conversations.

Nick Aingerindicated assent.

Adam Price (Spokesperson (Defence; Transport; Economy & Taxation; Miners Compensation; Regeneration; Trade & Industry); Carmarthen East & Dinefwr, Plaid Cymru)

The Minister indicates his assent.

I am not satisfied; it would be far clearer if the duty to respond were placed in the Bill, but I beg to ask leave to withdraw the amendment.

Nia Griffith (Llanelli, Labour)

I very much welcome the proactive role that the clause sets out for the commissioner. It is easy for us to acknowledge the needs and concerns of older people in Wales, but the clause specifies that the commissioner’s role will go further and that he will promote and safeguard their interests. Matters such as prejudice and discrimination can be complex, and while it can be easy to recognise direct discrimination there can always be indirect discrimination through factors that make it more difficult for an older person to participate in activities or benefit from opportunities than it is for a younger person. The commissioner will have the role of actively promoting opportunities for older people and of driving forward the elimination of discrimination in a wide range of areas such as leisure, health and social services.

It is important that that proactive role is recognised. The commissioner must not be seen just as a glorified ombudsman. He will have the role of encouraging best practice in public bodies and services in Wales.

We all know that life expectancy is increasing. Today, and not for the first time since I was elected, I had the pleasure of sending 100th birthday greetings to one of my constituents—this time to Mrs. Phillips from Golwg y Mynydd. We know that needs will increase with life expectancy and encouraging best practice will involve planning for that. That is important because we all know that when services are under pressure best practice is sometimes forgotten. That is why it is important to have a commissioner looking at services from the point of the view of older people.

David Davies (Monmouth, Conservative)

Does the hon. Lady agree that the local government funding settlement, as decided by the Welsh Assembly, should take more account of the age of the population, given the needs to which she referred?

Nia Griffith (Llanelli, Labour)

There are many extreme pressures on local government. Indeed, local government will have to face up to those increasing needs. We are taking a long-term perspective of the increasing number of older people, and I am sure that the commissioner will do a very good job in highlighting those issues.

In conclusion, I remind the Committee that the clause clearly reflects the Welsh Assembly’s strategy on older people in Wales, and passing it will be a very important step forward in enabling them to see the strategy implemented.

Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham & Amersham, Conservative)

Clause 2 confers the general functions on the commissioner and therefore it seemed apposite to return to the proceedings in the House of Lords and to look at a document sent by Lord Evans on 21 June 2005 which followed Second Reading on 14 June 2005. That document reads:

“The UK Government has made it clear that it does not want to establish a UK commissioner for elderly people at the present time. There will be a new powerful UK Cabinet Sub-Committee on Ageing Policy which will be Chaired by the Secretary of State for the Department of Work and Pensions. Its remit will be to drive forward the UK ageing strategy as described in “Opportunity Age””.

Under the auspices of the general functions, how will the commissioner liaise with that new powerful UK Cabinet Sub-Committee on Ageing Policy? Who is on that Sub-Committee? Indeed, is there a Minister for Wales? Who will chair it? How many times has it met? How is it envisaged that the commissioner will liaise with it? Obviously, given that such a fuss was made of it by Lord Evans in the note sent out and in the briefing on Second Reading in the other place, it must be very important and the Committee should hear about it.

Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West & South Pembrokeshire, Labour)

Clause 2 provides for the commissioner’s general functions, as hon. Members have said, and will ensure that he or she has a broad remit to promote and safeguard the interests of older people in Wales. The general functions will support the commissioner’s other specific functions set out in the  Bill. He or she will be able to promote awareness of the interests of older people in Wales and the need to safeguard those interests. The commissioner will also be able to promote the provision of opportunities for, and the elimination of discrimination against, older people, encourage best practice in the treatment of older people, and review the adequacy and effectiveness of the laws affecting their interests. In undertaking those powers, the commissioner may act only in fields in which the Assembly has functions.

I am grateful for the support of my hon. Friend the Member for Llanelli (Nia Griffith) for the Bill, particularly clause 2. Clearly, as I have indicated, the proportion of older people in Wales is higher than in England and is set to grow. We need a commissioner to champion older people, to take forward their issues—those that concern and directly affect them—to make representations on their behalf and, where necessary, to carry out investigations.

The hon. Lady asked about the Cabinet Sub-Committee on Ageing Policy, which is chaired by the Deputy Prime Minister, rather than the Secretary of State for Work and Pensions. I cannot tell her how many times it has met, but I will come back to her on that.

Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham & Amersham, Conservative)

I am very glad to know that an ageing member of the Cabinet is now chairing its Sub-Committee on Ageing Policy, but I should like a few more details about it. It was described by the Minister’s colleague in another place as a new and powerful Sub-Committee. I would like some evidence of that and to say how the commissioner will interact with it, because it must be envisaged that there will be an interface between it and the commissioner. If the Minister cannot do that now, I should be grateful if he could let me have the further particulars that I have requested of him in the form of a letter circulated to all the members of the Committee.

Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West & South Pembrokeshire, Labour)

I can certainly do that. I can also tell the hon. Lady that the commissioner could attend the Sub-Committee by invitation.

I am conscious of the time. We have had a good debate on the clause and covered a number of issues.