Clause 10
Commissioner for Older People (Wales) Bill [Lords]
4:00 pm
Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham and Amersham, Conservative)
I beg to move amendment No. 30, in page 6, line 28, leave out ‘may' and insert ‘shall'.
Hywel Williams (Spokesperson (Culture; Education & Skills; Work & Pensions; Social Security; Health; Disability; International Development); Caernarfon, Plaid Cymru)
With this it will be convenient to discuss the following amendments: No. 26, in page 6, line 31, leave out subsection (2).
No. 31, in page 6, line 38, leave out ‘may' and insert ‘shall'.
No. 33, in clause 15, page 9, line 4, leave out ‘may' and insert ‘shall'.
No. 28, in page 9, line 6, leave out subsection (2).
No. 34, in page 9, line 9, leave out ‘may' and insert ‘shall'.
Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham and Amersham, Conservative)
It gives me great pleasure to speak to the amendments. Clause 10 relates to the examination of cases. I can see from the consultation document that there were obviously concerns about that matter. I hope that I can articulate some of those and ask the Minister to make clear his position.
First, there was some concern that the commissioner would be able to demand an answer from a person. A community council was concerned that in a free country with citizen’s rights a person should not be forced to speak by legal coercion from the state. The council hoped that in instances of whistleblowing, confidentiality would be of paramount importance. Will the Minister address those concerns?
Concern was also expressed about the powers of examination. Some respondents hoped that the commissioner would be schooled in the rules of court procedure or that a clerk of the court would attend to expedite powers in connection with the examination of cases under clause 10.
When the regulations are made under clause 10, what consultation will take place? What will the Assembly do to inform itself while making those regulations? Will it consult widely on the detail of the regulations? Will it, for example, consult the Law Society? What is the position on data protection legislation and freedom of information relating to the examination of cases under clause 10? Can a person appeal against examination?
Amendments Nos. 33 and 34 refer to the report that will follow the discharge of particular functions. I should like some clarification from the Minister on what will happen when the reports have been compiled following the discharge of the functions referred to in clause 10. To whom will those reports be sent? Will they be timely? What limits will be set on the time for production of the reports, what will happen to those reports and who will respond to them, and on what time scale?
I know that the circulation of those reports is intended to include a list that was in the statement of policy intentions, but will the Minister confirm that that list will still apply when and if those organisations are required to respond to the reports?
Mark Williams (Shadow Minister, Welsh Affairs; Ceredigion, Liberal Democrat)
Liberal Democrat amendment No. 26 would enable the commissioner to examine individual cases on non-devolved matters, and amendment No. 28 would allow the commissioner to make a report on a non-devolved matter. I do not wish to bore the Committee any longer, so I shall not say any more. We rehearsed the debates at length this morning, but I shall be interested to hear what the Minister has to say—again.
Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West and South Pembrokeshire, Labour)
Amendments Nos. 30 and 33 would place the Assembly under obligations to make regulations providing for the examination of cases by the commissioner and for the commissioner to make reports following the discharge of any of his functions. The Government do not believe that either amendment is necessary. The Assembly is committed to establishing a commissioner for older people with powers of examination and powers to make reports, and its statement of policy intentions makes clear the intended detail of the regulations on those matters. I assure hon. Members that in each case, the wording is identical to that found in the Care Standards Act 2000, which established the Children’s Commissioner for Wales. There has been no question of regulations not being made in respect of the Children’s Commissioner’s equivalent powers. I hope that the hon. Member for Chesham and Amersham is satisfied on those points.
The hon. Lady asked about the relationship with the Data Protection Act 1998 and the Freedom of Information Act 2000. The clause will disapply neither. She also asked how the Assembly will consult. They will consult widely on the regulations and the Law Society is on the consultation list. The consultation will be on the full draft regulations. On the timeliness of reports, paragraph 45 of the statement of policy intentions lists the people to whom it is intended that reports will be sent. That has not altered since lunch time. I assure the hon. Lady that paragraph 47 reflects the intention that time scales for responses will be set.
Amendments Nos. 31 and 34 would ensure that regulations made by the Assembly detail the types of case that can be examined, the circumstances in which an examination may be made and the procedure for conducting an examination, as well as the contents of a report and the persons to whom copies must be sent. Amendment No. 34 would also provide that the regulations must enable the commissioner to make a joint report with the Children’s Commissioner for Wales, make provision about the publication of a report, and specify any further action that the commissioner is required to take. Again, the amendments are unnecessary. The Assembly has made clear its intention to include such provision in the regulations—again, I draw the Committee’s attention to the statement of policy intentions. It is difficult to envisage how regulations that make provision for the examination of cases and for the making of reports by the commissioner could not include such information.
I come now to the amendments tabled by the hon. Member for Ceredigion (Mark Williams). Amendment No. 26 would enable the Assembly to make regulations enabling the commissioner to examine the case of an older person in Wales in connection with both his power to make representations to the Assembly on non-devolved matters and his power to undertake research and educational activities on non-devolved matters. Amendment No. 28 would do something similar in relation to non-devolved matters.
This morning, we debated extensively non-devolved matters, the relationship that the commissioner has in that respect, and how he would make representations on behalf of older people in Wales. I know that I have not satisfied the hon. Gentleman on those matters—I do not think that I have satisfied any Opposition Member on them—but my position has not changed since lunch time. The Government cannot accept the amendments, for the reasons that I have explained at great length. I therefore ask the hon. Lady and the hon. Gentleman to withdraw or not to press their amendments.
Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham and Amersham, Conservative)
The Minister never seems to be able to satisfy me, so I will have to continue to be dissatisfied, but I appreciate his attempt to give answers to the questions that I posed. I was a bit premature in posing one of them, but I shall pose it again in relation to the next amendment. I beg to ask leave to withdraw the amendment.
Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham and Amersham, Conservative)
I beg to move amendment No. 14, in clause 10, page 7, line 9, leave out subsection (7).
This is a probing amendment about the High Court powers. Omitting subsection (7) would not add to the coherence of the Bill, so I hope that the Minister’s reply will not be based solely on the amendment. It was tabled as a probing amendment, rather than as an amendment that I hope will be made to the Bill. I simply wanted to inquire what other bodies have the powers envisaged in subsection (7).
I posed my next question previously because I was reading my scribbled notes without the aid of my glasses. Will the commissioner or members of his staff involved in examining cases be schooled in the rules of court procedure, or have a clerk of the court in attendance? In addition, does the power to apply to the High Court for the power of entry add anything to the existing provisions relating to the police and magistrates? That question was posed by City and County of Swansea council and Swansea Network 50+.
In the event of hearings, does the Minister envisage a place being specified for them to take place, what would be the optimum staffing for hearings and examinations, and to what extent could those activities involve witnesses abroad?
Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West and South Pembrokeshire, Labour)
The hon. Lady has asked a number of questions on clause 10. First, she asked what other organisations have similar powers. In Wales, such powers certainly exist in other commissioner and ombudsman legislation, including that which established the Children’s Commissioner and the public service ombudsman, so I hope that that reassures her.
The hon. Lady also asked about the training to be given to the commissioner’s staff. Obviously, it will be for the commissioner to ensure that his or her staff have the training necessary to be involved in examination of any case. It would be helpful if the Committee understood what clause 10 is about. It will ensure that the commissioner has the right powers to obtain the evidence, to hold an inquiry, to carry out research and to ensure that he or she is fully appraised of the case that may be presented.
The hon. Lady alluded to concerns expressed by certain organisations. We envisage the power being used not against individuals who make a complaint, but against those who may be complained about. The ombudsman and the Children’s Commissioner have such powers and, as far as I am aware, no one has complained about those powers being exercised by the ombudsman or the Children’s Commissioner.
The sort of people who would be subject to the powers are likely to include those connected with the provision of regulated services to older people in Wales, such as providers or former providers of those services, their employees and perhaps voluntary workers. They are also likely to include people connected with the provision of other services to older people in Wales by bodies such as the Assembly, a schedule 2 body or any body that provides services in Wales on behalf of or under arrangement with a schedule 3 body.
The hon. Lady asked about witnesses from abroad. They could be called by service of a writ, but the commissioner would have no power to force them to attend. She also asked whether a place would be specified for hearings and about staffing. It will be for the commissioner to decide the most appropriate venue for such hearings.
Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham and Amersham, Conservative)
I am grateful to the Minister for giving way while he receives inspiration. Can he tell me whether there will be a minimum number of people present at a hearing?
Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West and South Pembrokeshire, Labour)
No, I cannot. It will be the appropriate number that is required.
The hon. Lady asked about the power to apply to the High Court, whether that adds to the police’s powers of entry and so on, and whether it goes further than the police powers. It will not affect the powers of the police. It is needed to ensure that the commissioner can require the information he needs to examine a case on his own behalf. I reiterate that the purpose of the clause is to ensure that the commissioner can carry out his job. There may be circumstances in which he needs powers of entry and examination. Everybody appreciates that when dealing with allegations of elder abuse, those powers are important. Some people allege that the commissioner will not have any teeth, but in that situation, he will have the teeth to carry outhis role.
Stephen Crabb (Preseli Pembrokeshire, Conservative)
Is the Minister aware of any instances when those types of powers have been exercised by the Children’s Commissioner for Wales or the public service ombudsman in Wales?
Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West and South Pembrokeshire, Labour)
I cannot think of any off-hand, although the commissioner carried out an inquiry into the case of a drama teacher who had been accused of—well, we know the allegations—and I am assured that the powers were used in that case. It is a good example of a case in which allegations had been circulating for a long time and the Children’s Commissioner finally obtained what an awful lot of parents had been asking for: resolution and closure. It could have been done only by the Children’s Commissioner using those types of powers. With that assurance, I hope the hon. Lady will withdraw her amendment.
Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham and Amersham, Conservative)
I am grateful to the Minister for putting more flesh on the bones of the legislation, although I remain concerned about the examination of cases. The Committee knows far too little about the way in which the function will operate, however I live in hope that when the regulations are produced, there will be more details. I have tried to probe a little, but I understand that the Assembly will consider the matter in detail.
I am still worried that the legislation will set up a quasi-court of law, without the attendant safeguards and the security of knowing the set up or how the commissioner and his staff will use those powers. However, I appreciate that the Minister has made as good an effort as possible, and I beg to ask leave to withdraw the amendment.