My Lords, in speaking to Amendment No. 1 I shall speak also to Amendment No. 2. These amendments are intended to draw attention to the difference between this Bill and the children's commissioner Bill, which includes details of the term of appointment and reappointment. In short, such matters were decided in primary legislation in that case.
The provisions for appointment in the Bill differ from those in the children's Act in that this Bill reserves details of appointment and possible reappointment to the National Assembly and secondary legislation in the form of regulations. I recognise the arguments for this change of legislative approach: if the Assembly pays for the office of commissioner, as it will, it should make the appointment and settle its terms and conditions; the commissioner is the Assembly's employee, is responsible to the Assembly; and so on. But there are drawbacks of which we should be aware. As I mentioned in Committee, in a public consultation on this matter, the advisory group to the National Assembly found that 59 per cent of respondents opted for a four-year term of appointment and a similar term for reappointment, and I dare say that further consultation and discussion is likely before the final figure is decided upon.
The whole process seems rather long drawn out and almost time wasting when the issue could be settled here and now in primary legislation, rather than being prolonged, as appears to be inevitable. Secondly, there is a hint in the Bill of what has become known as "creeping devolution". Your Lordships should be aware of the nature of that beast, especially in view of the devolution Bill that lies ahead of us later this Session. In the White Paper, Better Governance for Wales, we find a commitment to what is referred to as "framework legislation". Indeed, the style of appointment of this commissioner for the elderly seems to be typical of that kind of legislation. The change should not pass unnoticed. I do not intend to make a mountain out of a molehill, but I wonder whether the Minister can give us some indication of how long the appointment is to last and whether there will be a set term for reappointment. I beg to move.
My Lords, I shall speak to Amendment No. 1 before turning to Amendment No. 2. During the discussion of this matter in Committee, I explained that the term "appointment" would also encompass the possibility of reappointment. I can assure noble Lords that the Assembly intends to make provision about this matter in regulations. Moreover, I refer noble Lords to the statement of policy intentions submitted by the Assembly in which it states its intention to specify an initial term of four years, renewable once, in line with the views expressed in the public consultation.
Amendment No. 2 places in the Bill a requirement that the initial term of office of the commissioner is a period of five years. I acknowledge the instant clarification on this matter that such an amendment would bring. However, in our view, the appropriate term of office for the commissioner is quite properly something for the Assembly to determine. Giving the Assembly its own regulation-making power for the appointment of the commissioner will allow it to cater for any necessary changes to ensure that secondary legislation continues to fit closely the needs of older people in Wales. I hope that with this reassurance the noble Lord will feel able to withdraw the amendment.
My Lords, I am grateful to the Minister for his comments on these two amendments. I said at the outset that my prime purpose in tabling the amendments was to draw attention to the differences in the appointment of the commissioner for the elderly and the commissioner for children in Wales. The Minister has given us all the details that we require about the likely term of the appointment and reappointment. Of course, it begs the question of why these details have not been put into the Bill at primary stage and why we have to await secondary legislation before these matters are incorporated. Nevertheless, we have now had an explanation and the Government's intention is clear. I beg leave to withdraw the amendment.
moved Amendment No. 3:
Page 1, line 8, leave out "may" and insert "shall"
My Lords, we welcome government Amendments Nos. 4 and 5, which arose out of discussion in Grand Committee. The Government have certainly listened and "good" has been replaced by "best". However, "may" has not been replaced by "shall". If a commissioner may do something, that means it is at his discretion and he has a let out. If he "shall", "will" or "must" do something, that is far more positive and it is an affirmation of something that he is obliged to do. Some say that one cannot oblige the commissioner or put a duty on him, but we believe that we can. The appointment is so important and it means so much to many people. If someone "may" do something it means that perhaps or possibly he will do something. An elderly person may think that he or she "may" achieve redress or "may" have a problem sorted out, but that is not what the Government are saying. They are sticking firmly to the word "may" and will not give us "must" or "shall". I suggest that the Government should consider this and say, "Yes, we agree that it must be far more positive, far more affirmative and that 'shall' or 'must' will replace 'may'". I beg to move.
My Lords, the problem with a discretionary function is that, in practice, it can mean anything or nothing. If the commissioner decides not to exercise a discretionary function, it seems to me that he cannot be challenged on that. Perhaps the Minister will explain why in Clause 2 the general functions of the commissioner cannot be expressed in terms of duties which he must discharge rather than powers that he may exercise.
My Lords, I shall speak to Amendment No. 3 before turning to the two government amendments. Amendment No. 3 seeks to replace the commissioner's power to undertake his general functions in Clause 2(1) with a duty. That would remove the discretion of the commissioner in relation to the exercise of his powers. That discretion was included in the Bill to ensure that the commissioner would be able to discharge his functions as he or she considers most appropriate and in accordance with his or her priorities.
The view of the Assembly—I stress the Assembly—shared strongly by the Government, is that it is essential to secure statutory independence for the commissioner so that he should have the freedom to choose when, in what instances, and how he will exercise his functions. I also remind noble Lords that the commissioner will have to operate within a fixed annual budget, negotiated by him with the Assembly, and we do not want to introduce, as this amendment would, any constraints on his freedom to decide how to match his resources with the priorities that he has identified. Moreover, the amendment would also increase the potential for any individual or body to institute judicial review proceedings against the commissioner if there is disagreement with the priorities that the commissioner has set.
Let me assure the House that the Government and the Assembly expect the commissioner to undertake all these general functions, and to do so in a proactive and vigorous manner to maximum effect. Listing them expressly in this clause makes it clear that there is an expectation that the commissioner will use these powers on an on-going basis in the interests of older people. That expectation is not an idle one. It has sanctions at its back. If there were to be a persistent, significant and perverse failure by the commissioner to exercise his powers in Clause 2, it is the view of the Assembly, shared by the Government, that that would amount to a basis for his removal on grounds of misbehaviour.
I turn next to government Amendment No. 4. In Grand Committee, noble Lords expressed clearly their wish to see the term "safeguarding" included explicitly within the description of the commissioner's general functions at Clause 2. While the Government still contend that the Bill as drafted already gives the commissioner the power to take specific action to ensure that the interests of older people are safeguarded, we have listened to the views of your Lordships that this should be made explicit. I have therefore tabled government Amendment No. 4, which will achieve that clarity and will further ensure that there is consistency in the terminology used across Clauses 2, 3 and 5.
Similarly, in Grand Committee the noble Lord, Lord Roberts of Conwy, proposed an amendment that sought to enable the commissioner to use his general functions to encourage best practice, rather than good practice, in the treatment of older people in Wales. I am most grateful to the noble Lord, Lord Roberts of Conwy, as well as to my noble friend Lord Prys-Davies for the arguments they put forward. In particular, the discussion drew our attention to the fact that some difference in standards might be inferred from the use of "good practice" in Clause 2 and "best practice" in Clause 11.
In the interests of consistency we have consequently tabled government Amendment No. 5 to ensure that the commissioner encourages "best practice" in the treatment of older people in Wales. I think all of us would recognise that "best practice" is a subjective concept in the context of a general matter, such as the overall treatment of older people in Wales. But we believe that the commissioner is well placed to exercise his judgment about what it constitutes, just as he will when issuing "best practice guidance" under his Clause 11 powers.
With these amendments, I hope that the noble Lords, Lord Thomas of Gresford and Lord Roberts of Llandudno, will feel able to withdraw their amendment.
My Lords, I welcome government Amendments Nos. 4 and 5, which, as the Minister acknowledged, derive from our discussions in Committee. I am delighted that the Government have been open-minded enough to accept the substance of the changes that we called for and have altered the Bill accordingly. Best practice is certainly better than good practice and is the only acceptable practice. The meaning of "safeguarding" older people's interests is well understood by us.
I have great sympathy with the Liberal Democrat Amendment No. 3; the performance of statutory functions should not be optional. As the Bill stands, it is a power rather than a duty and we would like to transform it into a duty. However, I also have sympathy with the Government's view that the commissioner should have discretion in the exercise of such a broad spectrum of functions as those described in Clause 2(1). He will certainly need to prioritise as regards performing those functions. While I have great sympathy with Amendment No. 3, I fear that I cannot support it more strongly than that.
My Lords, I am grateful to the Minister for his answer and for the two government amendments that we have welcomed. I am also grateful to the noble Lord, Lord Roberts of Conwy, for speaking well of our amendment. Possibly the best thing we can achieve tonight is to see how the Commissioner for Older People is effective in the first two or three years. If we see that we then need to reinforce his powers with obligation rather than discretion, we can visit this matter again. The Government of Wales Act means that we will have to look at many Bills in the future, including perhaps this one. I beg leave to withdraw the amendment.
moved Amendments Nos. 4 and 5:
Page 1, line 9, at end insert "and of the need to safeguard those interests"
Page 1, line 12, leave out "good" and insert "best"
On Question, amendments agreed to.
My Lords, we had an interesting discussion on this point in Committee and I hope the House will forgive me for returning to it. At that time the Minister suggested that the amendment would in some ways diminish the power of the commissioner by allowing him only to review the effectiveness of legislation in terms of past practice and not future need.
In his reply in Committee, the Minister suggested that the commissioner would have a further function to the one I anticipated in my amendment by way of Clause 3. The commissioner would be able,
"to review the discharge of functions of the Assembly and listed bodies for the purposes of ascertaining whether, and to what extent, they safeguard and promote the interests of older people in Wales".—[Official Report, 18/10/05; col. GC 212.]
If the commissioner detects a defect or inadequacy in legislation he may recommend a change in the law. Clause 3 refers to,
"the making or proposed making of subordinate legislation".
I have always been under the impression that it is up to Ministers to decide what further laws or changes to laws are necessary. The idea that the commissioner should have a hand in the making of new laws is a new concept to me.
The Minister is also aware that I agreed with the amendment tabled by the noble Lord, Lord Prys-Davies, which sought to introduce law and practice into the commissioner's review. The difference between the Minister and myself is that I believe the function of the commissioner is to keep under review the adequacy and effectiveness of law and practice affecting the interests of older people. I also believe that it is a sine qua non that he should be able to check on the implementation of such laws. I hope that the Minister will consider the amendment and those related to it in the light of those key points. I beg to move.
My Lords, Amendment No. 6 is grouped with Amendments Nos. 8 and 9, although they deal with a separate matter.
In Amendments Nos. 8 and 9 we return to the well trodden path of devolution. The answer given by the Minister in Committee to amendments dealing with similar matters was that we were revisiting the devolution settlement. "Devolution settlement" is a favourite term of the Government. I have always thought of it as a phrase designed to placate English Members of Parliament and English noble Lords with some view that Welsh devolution had finished. But I have always borne in mind—and emphasised on a number of occasions—the words of the Secretary of State at the time of devolution, Ron Davies. He said that devolution is not an event but a process. It is a process which will continue.
The Commissioner for Older People is the creature of the Westminster Parliament. The noble Lord, Lord Evans, said in Committee that it would not be appropriate for a commissioner established by the National Assembly for Wales to exercise his general functions under Clause 2 in relation to non-devolved matters. This commissioner is not established by the National Assembly for Wales but by this Westminster statute. Consequently there is no reason why the commissioner—who is independent of the National Assembly—should have his remit limited to devolved matters. He should be able to look at the interests of old people generally.
I visited these matters when we discussed the position of the Children's Commissioner for Wales. When a Children's Commissioner for England was proposed, problems arose over the overlapping functions of that commissioner with the existing Children's Commissioner for Wales. We heard the views of the Children's Commissioner for Wales about the problems of an English commissioner coming into his territory.
When dealing with children, we were concerned with Home Office affairs such as juvenile crime and juvenile prisons. With old people we are concerned with much wider non-devolved matters. These do not divide neatly into devolved and non-devolved matters. We are concerned with pensions, social security benefits, tax and social services. Many of those matters are not part of the National Assembly's responsibility.
In addition, when dealing with elderly people with problems, their particular difficulties in these areas are exacerbated by frailty and by the impatience and frustration that is sometimes caused by a lack of understanding of what can be very complex matters. Clause 2(3) contains the compromise that we arrived at with Lord Williams of Mostyn in relation to the Children's Commissioner—namely that the commissioner could consider and make representations to the Assembly about any matter relating to the interests of older people in Wales. But the commissioner has to go through that channel.
It is interesting to see how the Children's Commissioner has coped with non-devolved matters since his office was founded. Mr Peter Clarke gave evidence to the Welsh Affairs Committee on
"a number of informal ways of being able to advocate on behalf of children and young people . . . I have been invited regularly to speak to magistrates' benches, family court judges and other judges within Wales; I have been invited into two or three prisons in Wales; I have meetings regularly with operational commanders in South Wales Police and I have had contact with other police authorities".
These are all non-devolved matters. Mr Clarke continued:
"The only place I found my current powers a serious impediment has been in the conduct of the Clywch Inquiry where I would have liked to have had access to a police report but I was not able to demand it, whereas I could demand documents from every other party".
When questioned further by Mrs Julie Morgan, he said:
"I do not have my strongest powers in the areas of non-devolved matters. I cannot require documentation to be given to me, I cannot require the attendance of witnesses to give evidence on oath if I am conducting an inquiry. From the point of view of being the most powerful children's champion possible it would be good from my perspective if the current Children Bill were amended to extend my powers over those matters".
So the experience of the Children's Commissioner is that of being limited in the inquiries that he can make in relation to non-devolved matters. Yet here we are some time later setting up an admirable position of a Commissioner for Older People, but a commissioner without the necessary powers that he requires.
When I look at Clause 9(2) I note another matter. The Commissioner for Older People cannot examine the case of any particular person in non-devolved matters at all. I see the Minister shakes his head. Am I wrong about that?
My Lords, I thought we were reporting to this House, sitting in the Chamber, on what had been discussed in Committee. I am not giving a lecture; I am making an entirely valid point that here again the position is that where individual cases relating to older people—and surely we all have the interests of older people in Wales at heart—cannot be considered by this commissioner. That is why I intend to move Amendments Nos. 8 and 9 in due course.
My Lords, I want to tell the noble Lord why I shall be opposing his amendment if he presses it. There are two reasons. First, the continuing success of the devolution settlement has been its clarity of accountability. The commissioner may be created by Westminster statute, but it will be wholly and totally paid for by the Assembly. The Assembly's budget will carry the cost of the commissioner.
Secondly, the agencies and the departments that the noble Lord wishes to bring within the scope of the commissioner's powers are United Kingdom agencies and departments which have their own very clear lines of accountability. They have lines of accountability to UK Ministers, to the Houses of Parliament through Select Committees and through questions and answers, and to Members of Parliament. The things that the noble Lord spoke about were the meat and drink of my 30 years' worth of parliamentary experience. That is the job of a Member of Parliament; that is the job of a Select Committee investigating at national level the role and the way all these agencies perform their duties in respect of older people, or, indeed any other clients of theirs.
I have always sought to achieve equality of service across the United Kingdom. I do not want older people in Hertfordshire to have different benefits from older people in Monmouthshire. I do not want different rights for older people on each side of Offa's Dyke. I do not think that that is the way forward. I believe that this is a genuine United Kingdom interest and that we should sustain and maintain the quality of benefits and treatment. I certainly do not think that we should confuse the line of accountability. There is a very clear line of accountability for UK departments. They are accountable to the Parliamentary Ombudsman, to Select Committees, to Members of Parliament and to Ministers.
Since the devolution settlement in 1998 communication between the Assembly, United Kingdom Ministers and officials at Whitehall has grown very successfully. Commissioners have to go through the Assembly. The Assembly will create this office by funding it and promoting the Bill, and I do not think that it should be bypassed in any way. Therefore, I do not believe that the noble Lord's amendment, which would allow the commission to have the right, presumably to go to UK Ministers—I think that is the logic of it—is the right way forward. I hope therefore that he will think about the matter. I also want the devolution settlement to work. I do not see this provision in terms of English Members at all; I see it as part of a growing process. The Assembly has grown. All the Richard commission evidence has demonstrated that. One of the ways it has grown is the way that we have maintained clear systems of accountability between ourselves and Westminster and between UK Ministers and Assembly Ministers. The Assembly is the best conduit through which this kind of representation should be made. I therefore will not be supporting the amendment of the noble Lord, Lord Thomas.
My Lords, the effect of Amendment No. 6 would be to replace the wide powers the Bill gives the commissioner to review the effectiveness of legislation with a rather narrower power merely to review its implementation. That would mean that the commissioner would be unable to review the effectiveness of existing or proposed legislation, and would not, for example, be able to look at whether proposed legislation would be effective in achieving the policy aims that it was designed to fulfil. In the Government's view, that would restrict rather than enhance the commissioner's powers, whereas the clause as drafted would encompass all that the noble Lord seeks to include.
"we are faced with a new concept of the role of the commissioner in law".—[Official Report, 18/10/05; col. GC 214.]
I can reassure noble Lords that similar powers to review the adequacy and effectiveness of law have a precedent in other commissioner legislation—in the Commissioner for Children and Young People in Scotland, and the Northern Ireland Commissioner for Children and Young People.
I turn to Amendments Nos. 8 and 9. These seek to extend the devolution settlement by giving the commissioner a power to exercise his general functions in Clause 2 in respect of matters that are not devolved to the National Assembly for Wales. We discussed this matter at great length in Grand Committee where I hope I made the Government's position quite clear.
The establishment of the commissioner and the functions of that office must be consistent with the existing constitutional settlement. We absolutely agree that devolution is a process and not an event. That is why the Government will be bringing forward a Bill to address the future directions of the devolution process. I have made the Government's position absolutely clear on this, and we must wait for the new Bill to debate that direction.
Non-devolved functions, as we know, are the responsibility of the UK Government and not the Assembly. It simply would not be appropriate for a commissioner established by the Assembly and for Wales to exercise his general powers in relation to non-devolved matters in the way that these amendments propose.
The proper constitutional route, within the devolution settlement as it currently exists, is for the commissioner to make representations on non-devolved matters via the Assembly, as the elected body with democratic responsibility for the people of Wales. The Government hold firm to that view. I stated in Grand Committee that the Assembly Government understand and accept that position, although presumably they—and we—are looking forward to the new Bill, when published.
Furthermore, the recent exchange of letters between the Wales Office and the Assembly Ministers, copies of which have been placed in the Library, show the commitment of both to ensuring that the process of dealing with the commissioner's representations is very effective. For the reasons I have explained, the Government cannot accept the amendment and I invite the noble Lord to withdraw it.
My Lords, the noble Lord, Lord Thomas of Gresford, was quite right in saying that there are two very separate subjects within this group of three amendments. Amendment No. 6, which I moved, deals specifically with the interpretation of the commissioner's function in keeping under review the adequacy and effectiveness of law affecting the interests of older people in Wales. What concerned me—a concern shared, I think, by the noble Lord, Lord Prys-Davies, in Committee—was precisely what was meant by the process of checking on the effectiveness of law.
We now know that if Amendment No. 6 were to be implemented, it would give the commissioner a narrower power and he would not be able to look as closely as the Government would wish him to at proposed legislation. The Minister has given us precedents for commissioners looking at proposed legislative developments and I accept the point that he made. At the same time, I wish to stress how important it is that the commissioner should be able to check thoroughly the effectiveness of the operation of the law, in so far as the interests of older people are concerned. That means law and its practice in Wales.
The other two amendments, tabled by the Liberal Democrats, deal with the scope of the commissioner's powers and, personally, I do not think that one can have one's cake and eat it. The commissioner is very much an appointment of the Assembly and an employee of the Assembly; his office is financed by the Assembly. Therefore, it is understandable that this Bill should confine his functions and his powers to areas in which the Assembly also has functions. I am sure that this is not the last time that we shall be debating this issue. Nevertheless, I beg leave to withdraw the amendment.
moved Amendment No. 7:
Page 1, line 14, at end insert—
"( ) be given the power to enforce the take-up of recommendations made in line with his functions under paragraphs (a) to (d)"
My Lords, I have been made aware by Age Concern, Help the Aged and the Law Society of a general discontent with the lack of powers that the commissioner will have. Amendment No. 7 is made in response to those fears, as well as my own, that the commissioner will lack teeth, as we put it colloquially. The same concern permeated our earlier debate on Liberal Democrat Amendment No. 3, on the question of "shall" as opposed to "may" in the performance of functions under Clause 2.
Before I move on, I must acknowledge the potential of Clause 13, which provides for further supplementary functions for the commissioner. That clearly anticipates that the commissioner may have further functions conferred on him. I can think of no better function to be conferred on him than the power of enforcing his own recommendations, which is what we propose in Amendment No. 7.
Amendment No. 26 is also included in this group. That, again, is concerned with the examination of cases and action to be taken. The amendment is intended to ensure that the examination of cases is implemented thoroughly. As Clause 9(6) stands, examinations are closely governed by regulations, but it is not clear what happens if an examination results in a recommendation that is not then complied with. It seems to me ludicrous to have regulations relating to compliance with recommendations that do not cover situations arising in the event of non-compliance. Amendment No. 26 seems to me necessary in order to ensure clarity and consistency. I shall, at a later stage, return to comment favourably on the government amendments included in this group. I beg to move.
My Lords, we support this amendment in giving additional and important power to the Commissioner for Older People. I refer to the views of Mr Peter Clarke in relation to his powers as the Children's Commissioner, and I shall return to that when Amendment No. 8 is called shortly. It is obviously important that recommendations made by the Commissioner for Older People should not lie on a shelf, gathering dust. Rather, they should be implemented and the commissioner should have the power to do so.
My Lords, when the debate on this amendment took place in Grand Committee, I raised with the noble Lord, Lord Roberts, the issue of its budgetary consequences. I was waiting to see whether he had found a way of addressing the question that I put to him then, so I repeat: commissioners' recommendations could lead to considerable pressure on budgets. For example, it would be within the commissioner's responsibilities to make recommendations to a local authority—not necessarily one local authority, but all local authorities—about the services that it provides in certain respects of dealing with elderly people. The same is true of health trusts and even of those services directly budgeted for, funded and delivered by the Assembly itself. Recommendations of that kind could have serious budgetary implications for the organisations concerned.
We are not talking about the enforcement of a particular recommendation. The commissioner could—would, I hope—identify areas where there was inequality of service delivery in a health trust, between health trusts or between individual local authorities and then recommend to the Assembly delivery of a uniform service. For example, as I said in Grand Committee, there could be a recommendation that physiotherapy be delivered for female incontinence sufferers across the board, as opposed to the current patchy delivery of that service from one health trust to another. That is exactly the kind of thing that we want the commissioner to highlight, but I question whether he should have a right to enforce a recommendation of that kind, which could have a considerable impact on the budgets of a local authority, a health trust or the Assembly.
How will we marry the enforcement of an identified grievance of an individual, as opposed to a commissioner recommending as a result of his inquiries and services that a major new service should be provided for elderly people right across Wales, with considerable budgetary implications? Ultimately, in those instances, it has to be the responsibility of the Assembly, the local authority or the health trust to decide whether that would be the priority. Otherwise, the commission, in a curious way, will begin to assert the democratic rights and responsibilities of people elected at various levels to make decisions on priorities. That is my major query. I was waiting with some interest to hear whether the noble Lord, Lord Roberts, would respond to the point that I made to him.
My Lords, in Grand Committee I very much understood and sympathised with the thought behind Amendment No. 7, although I cannot go along with it as it is drawn. The amendment draws attention to the position that will arise where the provider simply refuses to implement the commission's recommendation. The Bill simply ignores that possibility. We are making a mistake in designing a Bill that is silent on that issue.
The provider may refuse to comply for one of a number of reasons. My noble friend indicated one good reason why an objector might not be prepared to go along with a recommendation, but there can be others—for example, wilfulness on the part of the provider. We know of damaging cases in the past few years where the provider was not prepared or willing to implement recommendations. I am not sure of the answer, but it should be possible to design a procedure where the recommendation and the objection to it can be referred to a third party for a decision that would be binding on the commission and the provider. That is an issue of considerable importance, and the Government should give it further thought.
My Lords, I shall speak first to government Amendments Nos. 20, 21 and 27, before turning to Amendments Nos. 7 and 26, which stand in the names of the noble Lords, Lord Roberts of Conwy, Lord Luke, Lord Thomas of Gresford and Lord Roberts of Llandudno. In Grand Committee, noble Lords stressed the fundamental importance of the commissioner not only looking into matters of concern to older people and making reports and recommendations about those matters, but being able to pursue his recommendations and hold bodies to account for their actions in response to his reports.
We expect the commissioner to be proactive in his approach to making and following up recommendations. To make that absolutely clear in the Bill, we have tabled Amendments Nos. 20 and 21, which extend the regulation-making powers in Clause 6(5) to enable the commissioner to require prescribed persons to provide him with information for the purposes of determining whether a recommendation made in a report, following a review of arrangements, has been complied with. Furthermore, Amendment No. 27 provides that, where a person fails to comply with such a request for information, that will be dealt with by means of the existing obstruction and contempt provision in Clause 10.
Amendment No. 7 would allow for the commissioner to be given the power to enforce any recommendations that he might choose to make in connection with his general functions. Compliance with those recommendations would be obligatory. However, providing for such an enforcement power in respect of the discharge of general functions would mark a significant extension of the commissioner's powers and would go far beyond the powers of any other commissioner or ombudsman.
Such a power could also cut across the work of regulatory bodies, such as the Care Standards Inspectorate for Wales, create duplication and cause confusion about who is in the lead on regulation and enforcement. In the Government's view, therefore, the Bill, strengthened by the government amendments, strikes the right balance by providing an appropriate level of follow-up action according to whether a specific or a general function has been discharged. The Assembly Government share that view.
Similarly, in considering Amendment No. 26, the Government and the Assembly Government are of the view that the addition of such a power would be inappropriate and largely unnecessary. With his existing powers the commissioner is able during an examination to request information, explanations and assistance for the purpose of identifying individual responsibility. That information will allow him, as part of the process of drawing up his recommendations, to determine what person or body is responsible for taking action on those issues. Furthermore, the commissioner will be able to identify responsible individuals in his reports and recommendations, if he considers it to be in the public interest. In such cases it would be evident on whom responsibility for implementation rested.
I now turn to two questions asked by my noble friend Lord Prys-Davies. First, is there an appeal against the commissioner's recommendation? No, we do not think that it is appropriate for the Bill to make provision for appeal mechanisms in the event that the commissioner's recommendations are not complied with. It would not be appropriate for any third party, such as another ombudsman, to pass judgment on whether the commissioner's recommendations were reasonable or had been adequately complied with. That would create a hierarchy of commissioners and ombudsmen, thus undermining their status as independent officers and a point of final recourse.
If a public body is not complying with the recommendations of the commissioner or any other ombudsman, the only way that that decision could be challenged would be in the courts by way of judicial review. Any review proceedings would not be against the commissioner's decision but against the decision of the body that is not complying with the commissioner's recommendation.
My noble friend also asked what would happen if a body refused to implement the commissioner's recommendation. There would be a number of avenues open to the commissioner in such a case. He may, for example, decide to review the discharge of functions of that body and produce another report with further recommendations. For example, if a decision had been taken not to pursue a recommendation because the necessary funding was not available, the commissioner could make a recommendation that the Assembly, or another appropriate body, should meet the cost or redefine the relevant policy priorities. In the light of those explanations, and with the three government amendments, I hope that the noble Lord will withdraw his amendment.
My Lords, I welcome Amendments Nos. 20, 21 and 27. They are improvements to the Bill. The commissioner should be enabled to require people to provide him with information so that he may decide whether a recommendation has been complied with. That is certainly a step forward. It is also right that, where a person fails to comply with such a request, the commissioner should be able to issue a certificate to the High Court so that proceedings for contempt of court may ensue. Those changes certainly help to ensure that the commissioner's recommendations are taken seriously and are on no account to be disregarded.
I must answer the noble Lord, Lord Rowlands, as I tried to do, if I remember correctly, in Committee, when he raised the question of resources that lay behind the enforced implementation of the commissioner's recommendations. This is the second time this evening that the issue of adequate resources for the commissioner has been raised. It was mentioned when we discussed Amendment No. 3 and the question of whether the functions should be powers or duties. The question of resources dictated that the commissioner should have some latitude to prioritise and perform according to the resources available to him.
Again, the question of adequate resources for the commissioner arises in the implementation of a recommendation, as per my amendment. That, too, comes under the "may" category, and it would be up to the commissioner to decide what recommendation to highlight as not being adequately complied with. Some discretion still rests with the commissioner in putting forward what are after all his own recommendations following on his functions under Clause 2.
My Lords, I am grateful to the noble Lord for raising the point, but I do not think that we are talking about the commissioner's resources. The commissioner's resources are modest by comparison. It is his recommendations about the use of other people's resources that raises the issue of enforcement, not the resources that he will have at his disposal. He will not have the resources to provide new services for elderly people throughout Wales but will recommend the utilisation of services and how resources will best be deployed. He may be entitled to make a recommendation, but he should not be able to enforce other people's resources to be used in the way that the noble Lord suggests.
My Lords, I take the noble Lord's point, but I have argued that it is entirely up to the commissioner what recommendation he makes. In making recommendations, he will have to take into account the resources issue, not just those available to him but the resources of those who are subject to his recommendation. In support of my interpretation of the commissioner's power to issue recommendations and the fact that he must be aware of his resources, I cite the fact that we have made his functions permissive rather than statutory in the strongest sense.
I certainly take the noble Lord's point. It is clear that the resources available in Wales and to those subject to the commissioner's recommendations are highly relevant. If the debate has done no more than try to ensure that those subject to the commissioner are adequately resourced, we shall have done something by tabling the amendment, which I now beg leave to withdraw.
had given notice of his intention to move Amendment No. 8:
Page 1, line 15, leave out subsection (2).
My Lords, I speak to the amendment to give myself an opportunity of replying to the critique of the noble Lord, Lord Rowlands, which I very much appreciate. I understand his concern about accountability and clear lines. Having considered that, it is a matter to which we shall have to return when the new Bill is before us. I hope that there can be considerable discussion about how to widen devolution—I am sure that the noble Lord's heart is in the right place.
The amendment is not so much concerned about reporting to the Minister as to the inquiry that the Commissioner for Older People can carry out under Clause 2(3). It is a fact that the commissioner has strong powers to deal with devolved matters, but when he is considering non-devolved matters under Clause 2(3), his powers, like those of the Children's Commissioner, will not be the strongest. In carrying out an inquiry to report to the National Assembly, he will not have powers to summon witnesses and to examine documents. Clearly the reports that he can make on non-devolved matters will be that much weaker as a result.
The Minister should appreciate that I have not come here without having read the entire Committee deliberations, and I read what the noble Lord, Lord Rowlands, said. Before Third Reading, we should consider whether the powers of the Commissioner for Older People should be strengthened when he is considering non-devolved matters under Clause 2(3). I give notice that we may table amendments for that purpose. I appreciate that the Minister has already replied, and I am prepared not to move my amendment at this stage, unless he wishes to say more.
My Lords, the argument about the amendment has changed somewhat since the Government introduced their amendments to Clause 5. Our argument was that if monitoring was necessary in the context of Clause 5 it was necessary in Clause 3.
The Government have argued that reviewing includes monitoring, and have decided by their Amendment No. 17 to remove the words,
"and monitor the operation of", from Clause 5, and to deepen the review procedure in that clause by Amendment No. 18.
They have at least achieved consistency, but I would still like to see monitoring by the commissioner added to his ability to review the discharge of functions by all who come under his purview, for the reason that I am about to give the Minister, which I know he will appreciate. The Oxford English Dictionary tells us that to review something is, at most, to,
"survey, to take a survey of".
That is surely for our purposes just the first step and not necessarily inclusive of any action.
In the same dictionary we find that to monitor something is to,
"observe, supervise, or keep under review; to keep under observation; measure or test at intervals"— here is the important point—
"especially for the purpose of regulation or control".
I think that that settles the difference between us. I beg to move.
My Lords, we on these Benches support the amendment. As the noble Lord, Lord Roberts of Conwy, said, the intention is to keep as close an eye as possible on the effectiveness of the commissioner's activities. As with every post, one learns from experience. We will see where the strengths of the post lie and where its failings might be. We may need to alter and look again at the remit and the operation of the commissioner's post. We support the amendment and we are sorry that "and monitor" has come out of Clause 5. We hope that the Government will think again and insert "and monitor" after "review".
My Lords, I shall be brief. It seems to me that the grounds for the amendment in Grand Committee have now disappeared in the light of the Government's amendment. Nevertheless, "monitoring" is still the correct word to use in certain circumstances and I would have thought that it was right to use it in the circumstances of Clause 5.
My Lords, I shall speak first to Amendment No. 10, before turning to Amendments Nos. 17 and 18. We discussed in some detail in Committee the issues raised in Amendment No. 10. I explained at that time that the Government's view is that both Clauses 3 and 5 already enable the commissioner to undertake review and monitoring activity. I am grateful to the noble Lord, Lord Roberts of Conwy, for looking up the definition of "monitor" in the Oxford English Dictionary. I understand that the dictionary makes a distinction between "review" and "monitor", but that distinction has no legal significance here as the terms used in the Bill must be interpreted in the context in which they appear. The term "review" in Clauses 3 and 5 includes monitoring activity and the Bill makes it clear that the purposes for which the commissioner may review functions and arrangements are safeguarding and promoting the interest of older people in Wales.
However, the Government have reflected on the concerns that were put forward by your Lordships, in particular those about the difference in terminology used in Clauses 3 and 5, and, as the noble Lord, Lord Roberts, has said, they have therefore brought forward Amendments Nos. 17 and 18 to address these concerns. These amendments align the terminology used in the Bill by removing the reference to monitoring in Clause 5, while making it clear that the term "review" would include the process of monitoring over time. We may not agree on this, but I hope that noble Lords will be reassured to some extent by these amendments and feel able to withdraw their own.
My Lords, we are grateful to the Minister for commenting on the amendments that he has brought forward to meet our concerns. Nevertheless, we thought that instead of taking "and monitor" out of Clause 5, he would have progressed to the point of inserting "and monitor" in Clause 3. He has not done that, but he has given us an assurance that "review" in his vocabulary includes monitoring. So for the time being we can only accept his judgment, with the reservation that if we find it defective between now and Third Reading, we may return to this matter then. I beg leave to withdraw the amendment.
My Lords, this amendment is about the publication of the annual report by the Commissioner for Older People in Wales. We had this discussion in connection with the Public Services Ombudsman and it was agreed in that case that a report would be produced. For transparency's sake, we need to know exactly what the commissioner is doing. We need to know how the resources are being used and whether this post is resourced adequately. We also might want to find out whether the commissioner feels that his hands are tied behind his back because he cannot deal with so many problems. He might say, as the CAB tells us, "We had 88,000 queries regarding pensions, but I couldn't deal with that: it wasn't in my remit". Or he might say, "We had 6,000 questions regarding taxation for elderly people, but I couldn't deal with that: it wasn't in my remit". If we have a report, it will show the weaknesses and the strengths of this particular post at this particular time. As has been said many times, justice must be seen to be done. We therefore ask the Government to agree to an annual report which will show the experience of the post and how it can be increasingly effective as the years go on.
Similarly, the next part of the amendment would require the publication of the response of those who are investigated by the commissioner. They should be given an opportunity to admit their faults, or even to justify the action that they have taken. I beg to move.
My Lords, I support that part of the amendment which would require an annual report to be published. I am not sure about the second part of the amendment because all kinds of questions arise; for example, if a body has been investigated by the commissioner, is a response to be published within six months regardless of whether the investigation is adverse or favourable? The second part of the amendment requires rather more definition, but the annual report aspect is certainly very important.
My Lords, I was a little surprised to see that this amendment had been tabled because I explained during our discussions in Committee that the Assembly has made clear its intention to make regulations requiring the commissioner to produce an annual report, using its powers in paragraph 8 of Schedule 1 of the Bill. This was set out in the statement of policy intentions produced by the Assembly and placed in the Library of the House in June.
We think that it is appropriate that the making of reports to the Assembly should be provided for in regulations to be made by the Assembly. I covered this point in some detail in my memorandum to the DPRR committee. It also mirrors similar provisions in the Children's Commissioner for Wales legislation.
These regulations will contain detailed administrative provisions which we think would be suitable for inclusion in regulation rather than the Bill. This will allow the Assembly greater flexibility in the future in terms of the reporting requirements and will give the opportunity for detailed consultation as part of the Assembly's procedures for making regulations.
I turn to the second part of the amendment. The Government's and the Assembly's position on this has not changed since our discussions in Committee. We do not feel that it is appropriate to place a requirement on the Assembly or any other person to respond to the commissioner's annual reports.
The annual reports will be concerned primarily with action that the commissioner has taken and intends to take in fulfilling his remit. They are less likely to deal in detail with what action other bodies might or might not have taken. However, as I explained, a mechanism is in place for considering the observations and recommendations that will be contained in the reports in the form of a plenary debate of the Assembly. In this way, the Assembly can be held publicly accountable for any perceived inadequacies in its policies for older people that are raised by the annual report. In the light of my comments, I hope that the noble Lord will feel able to withdraw the amendment.
My Lords, I am delighted by the positive response from the Minister and by his reference to the increasing authority of the National Assembly for Wales. I hope that that will soon be conveyed to us in the new government of Wales measure. So, hoping for good news in the future, I beg leave to withdraw the amendment.
moved Amendment No. 13:
Page 22, line 31, at end insert—
"The air ambulance in Wales.
Ambulance services and trusts.
A voluntary organisation."
"consider, and make representations to the Assembly about, any matter relating to the interests of older people in Wales".
Of course, the purpose of that subsection is to give the Commissioner for Older People power to deal with non-devolved matters; that is, to make reports and representations to the Assembly on those issues. When we come to Clause 3, it seems appropriate to include in Schedule 2 the bodies to which these amendments refer.
First, under Amendment No. 13, it seems right to add to the list of health bodies the air ambulance in Wales, ambulance services and trusts, and a voluntary organisation. It is proposed that they be put within that category. Amendment No. 14 refers to particular United Kingdom-wide services; pensions and benefits, jobs—in particular, job discrimination—and the criminal justice system. The noble Baroness, Lady Finlay of Llandaff, also has an amendment, to which we have added our names. She has asked me, in her absence, to speak to Amendment No. 15, which would include police authorities within the remit of the Commissioner for Older People. We do this fully appreciating that these are non-devolved matters, but it would be appropriate for specific reference to them to be made in Schedule 2.
So far as Amendment No. 16 is concerned, bearing in mind the general function of the commissioner, to consider and make representations on,
"any matter relating to the interests of older people", it would seem inappropriate to put the restriction that Clause 4(2)(d) does on amending Schedule 2, by requiring that,
"at least half of the person's expenditure on the discharge of its functions . . . is met . . . from payments made by the Assembly".
That limitation cuts down the general functions of Clause 2(3), to which I have referred. I await the Minister's reply. I beg to move.
My Lords, I turn to Amendments Nos. 13 and 23, and Amendments Nos. 14, 15 and 16—all of which deal with adding a body to Schedules 2 and 3.
Amendment No. 13 stands in the names of the noble Lords, Lord Thomas of Gresford and Lord Roberts of Llandudno. As I explained in Committee on this matter, the air ambulance service and ambulance services in Wales are covered by the inclusion in the schedules of an,
There seemed to be an element of doubt among your Lordships about that in Committee, but I can assure you that it is definitely the case. Therefore the amendment is unnecessary.
I absolutely accept that voluntary organisations are important, and particularly relevant to older people. However, the point I made during Grand Committee still stands. To add "voluntary organisations" in general to Schedule 2 or Schedule 3, as Amendment 23 proposes, would significantly alter the scope of the Bill. It would also be at odds with other commissioner or ombudsmen models, which are focused upon the accountability of bodies and persons who provide statutory services. Introducing this level of accountability and scrutiny into the voluntary sector inappropriately may discourage the provision of some voluntary services, which is certainly not our intention.
Amendment No. 14 seeks to give the Commissioner a locus in non-devolved matters. I have already stated the reasons why the Government cannot accept emendations of this nature and I do not intend to go over the matter again.
Amendment No. 15 seeks to insert police authorities into the list of bodies in Schedule 2. While I fully acknowledge the role that police authorities play in safeguarding the health and safety of older people in Wales, policy responsibility for policing in England and Wales lies with the Home Office, which also provides a substantial proportion of the funding for police authorities. As with Amendment No. 14 it would not therefore be appropriate, under the terms of the existing constitutional settlement, for police authorities to be included in Schedule 2.
The requirement that Amendment No. 16 seeks to remove is not just about making a distinction between devolved and non-devolved organisations. It is about defining the type of organisation that should be brought within the commissioner's remit, based on the financial contribution that comes from the Assembly. Removing the requirement would enable the Assembly to add to Schedule 2 an organisation, devolved or non-devolved, that received at least half its funding on the discharge of its function in Wales from the UK Government without any requirement for consent from the relevant UK department. It would also make Clause 4(3) redundant. I hope, in the light of this rather lengthy explanation, that the noble Lord will feel able to withdraw his amendment.
My Lords, in the light of that assurance, I beg leave to withdraw the amendment.
moved Amendments Nos. 17 to 18:
Page 3, line 18, leave out ", and monitor the operation of," and insert—
Page 3, line 19, after "(2)" insert ", and
(b) the operation of any such arrangements,"
On Question, amendments agreed to.
My Lords, I see that Amendment No. 19 is grouped with Amendment No. 28. In fact they have nothing at all in common, so I will speak to Amendment No. 19. Clause 5 provides that the commissioner may review the three arrangements which are referred to in subsection (2). They are the advocacy arrangements, the complaints arrangements and the whistle-blowing arrangements. The purpose of Amendment No. 19 is to expand the clause to empower the commissioner to review the arrangements for the implementation of the guidance on best practice. Having regard to the fact that the guidance on best practice will play a key role in promoting and maintaining high standards of service, I suggest that the arrangements for its implementation are just as important as the three arrangements referred to in subsection (2), if not more so. Prevention is better than cure; and if the guidance is being implemented, it is reasonable to conclude that there will be less demand on, or need for, advocacy, complaints and whistle-blowing arrangements. That is the case for Amendment No. 19. I beg to move.
My Lords, in this group is Amendment No. 29, in which we seek to extend guidance that is given by the commissioner on best practice, not only to the Assembly but to the United Kingdom Government as well—that is to say, to departments of the United Kingdom Government. I shall speak to that, or reply to the Minister, when that amendment is called.
My Lords, Amendment No. 19 would enable the commissioner to look at the arrangements that a listed body had in place for implementing the commissioner's guidance on best practice. It would not, however, enable him to consider whether the guidance itself had been implemented, which from our discussion I believe was my noble friend's intention.
I have therefore tabled Amendment No. 30, which adds two new subsections to Clause 11. They provide that a body that has been issued with best practice guidance by the commissioner must have regard to that guidance in discharging its functions and that, in discharging his functions, the commissioner will consider the extent to which a body has complied with any guidance he has issued.
I hope that my noble friend accepts that the explanation that I have just given meets his concerns.
My Lords, I wish to express my appreciation for the new subsections added to Clause 11. The first enables the commissioner to check whether his guidance has been complied with, so that he may issue a further report if necessary, and provides some much-needed strengthening to the whole process of issuing guidance. Some of us would have liked to see the guidance given statutory force, but that is not regarded as appropriate—and one can understand why. Nevertheless, the power in the new subsection is a strong hint that when the commissioner issues guidance he means it to be followed, and that he is not without remedy if his guidance is disregarded.
My Lords, I should have welcomed Amendment No. 30, tabled by the Government. The requirement in that amendment is very helpful, because it will mean that the authorities are to take the guidance with considerable seriousness. So that is a strong obligation. Nevertheless, a minority of authorities will not behave as well as they should, so we will still possibly have difficulties. I note what my noble friend said and shall reflect on it. Meanwhile, I beg leave to withdraw the amendment.
moved Amendments Nos. 20 and 21:
Page 4, line 38, after "for" insert "either or both of the following purposes—
Page 4, line 39, at end insert—
"(b) the purposes of determining whether a recommendation made in a report following the discharge of his functions under section 5 has been complied with."
On Question, amendments agreed to.
moved Amendment No. 22:
After Clause 6, insert the following new clause—
"UNDERTAKING OR ASSISTING RESEARCH
The Commissioner may undertake or assist (financially or otherwise) the undertaking by a body or other persons of any research and any educational activities which appear to the Commissioner necessary or expedient for the purposes of section 2."
My Lords, the value of the research is not doubted, and the lack of any specific reference to research in the Bill is worrying. In Grand Committee on
"to any directions given by the Assembly".
The paragraph goes on to say that a direction,
"may be amended or revoked by a subsequent", amendment.
So that is the weakness of paragraph 19 powers. Therefore, I believe that there is a great difference between the amendment and the power in paragraph 19—and unfortunately the difference is that between certainty and uncertainty.
The Minister went on to oppose the amendment because it,
"may call into question the extent of the commissioner's power to undertake similar activities using his supplementary powers in Schedule 1".—[Official Report, 18/10/05; col. GC212.]
With the greatest respect, it struck me that this was an inadequate argument. It raises the question of how any express power has been set out in the Bill. That is the argument for amendment No. 22. I beg to move.
My Lords, I rise to support my noble friend. Health inequalities in Wales are still totally unacceptable, and reflect a kind of postcode shopping equivalent: often, the more deprived the area, the more elderly people are deprived of services. If the commissioner were given the specific responsibility for undertaking research of this kind to identify areas of health inequality, it would help to highlight and promote the debate and ensure action. My noble friend is right in asking the Government to make this a specific duty or responsibility of the commissioner, because it could be central to the valid work that he or she could do in addressing issues of health inequality.
My Lords, Amendment No. 22 makes specific provision enabling the commissioner to undertake or assist others in research in any other educational activity the commissioner considers necessary or expedient for the purposes of Clause 2. We are in full agreement with the noble Lord, Lord Prys-Davies, that it is vitally important that the commissioner should be able to undertake such research or educational activities. We have complete confidence that the Bill already allows for the commissioner to do this via his supplementary powers in paragraph 19 of Schedule 1, which provides that the commissioner may do anything that is calculated to facilitate, or is conducive or instrumental to, the discharge of his functions. This would include such activities such as commissioning or undertaking research or engaging expert advice, and could be done in connection with any of the commissioner's functions, not just those in Clause 2.
Our disinclination to include this amendment is based purely on our wish to avoid narrowing the ability of the commissioner to undertake such research. I can therefore reassure your Lordships that we are in complete agreement with the spirit of this amendment, and that in our view the Bill already makes adequate provision for research activities. However, given that these points have been forcefully made by my two noble friends, I will reflect on what they have said between now and the next stage of the Bill to see whether any strengthening is needed in the Bill. There is no disagreement between us; it is simply a question of reassuring noble Lords that the Bill will do what we say it will. In the light of what I have said, I hope the amendments will be withdrawn.
moved Amendment No. 24:
Page 6, line 22, at end insert—
"( ) Regulations may make provision for the examination by the commissioner of a complaint made by a member of the public who claims that it is in the public interest that the situation described in the complaint be examined and the commissioner is satisfied that it should be examined in the public interest."
My Lords, the drafting of this amendment may well be defective. It became clear during the course of the discussion in Grand Committee that there is no provision in the Bill as it now stands for a third party to make a complaint to the commissioner about a matter that is in the public interest, unless the elderly person concerned consents to the making of the complaint. We have a duty to protect the public interest, even though the elderly person directly concerned may be unable or afraid to consent to a complaint being lodged with the commissioner.
The need for the power, assuming I have correctly understood the Bill, could arise when the commissioner receives a complaint from a member of the public setting out the circumstances, which should be examined by the commissioner in the public interest. I should not like to tempt case histories in anticipation of anything of that kind, but it could arise where the standards of service for the elderly provided by a named authority are seriously depressed, and the complainant provides supportive evidence, but the complaint is not made with the consent of an elderly person who receives the service. The complainant is induced to make the complaint as a matter of public interest. That is the reason for the amendment. I hope that my noble friend will also be sympathetic to this amendment. I beg to move.
My Lords, we on these Benches fully support the amendment that has been moved by the noble Lord, Lord Prys-Davies. It is an important power for the commissioner to receive a complaint and, if he is satisfied that it should be examined in the public interest, then to examine that complaint.
This amendment is coupled with Amendment No. 25, which to my mind sets out one of the real weaknesses of the Bill; that is, that any matter relating to non-devolved matters cannot be the subject of an individual investigation. It seems to me that the commissioner ought to have power to investigate individual cases even though the matter relates to a non-devolved issue. I have already outlined the other weakness that we discussed earlier, and I shall not return to that. It seems to me that if the commissioner cannot examine an individual case relating to a non-devolved matter his powers are very considerably restricted. Your Lordships will recall that I pointed out that many of these non-devolved issues such as pensions and benefits are the cause of the greatest worry to older people.
My Lords, I rise to express my support for the thrust of Amendment No. 24. Indeed, I have a great deal of sympathy with Amendment No. 25. It seems to me that if the commissioner is to have any real standing in Wales, he should be able to examine any defect, any disturbance, or any matter that is in the public interest. Once we deny him the right to examine a matter that is in the public interest, we depreciate him and his office enormously.
My Lords, Amendment No. 24 relates to Clause 9. This clause and the regulations which it enables the Assembly to make concern the examination by the commissioner of an individual's case, or of a group of linked cases. It therefore makes sense that at the heart of an examination made using these powers there must be a specific case to be examined.
The Government consider that, logically, this must mean that the individual whose case it is must give their consent. Alternatively, if perhaps they lack the mental capacity to do so, consent ought to be obtained from someone who the commissioner considers to be an appropriate person to give it.
It is difficult to see how the commissioner could investigate a case thoroughly when the subject of it refused to give him information about it. If, as I think my noble friend envisages, a scenario arose where an issue of concern was identified by a concerned relative or even a member of the general public, but the older person whose situation had given rise to the concern refused to give his consent for his case to be examined, the commissioner could still decide to take action. He would, for instance, be able to use his powers under Clauses 2 and/or 3 to investigate issues of wider concern and to make a report about them, or issue best practice guidance if he thought that was warranted. Therefore, while I understand the sentiment behind Amendment No. 24, the Government cannot accept it. It would not be right for the commissioner to be able to disregard the wishes of an older person and to examine their case when they did not want him to do so.
In their Statement of Policy Intentions, the Assembly government have acknowledged that it is important that the cases that the commissioner takes on for examination,
"raise a question of principle which has a more general application . . . than in the particular case concerned".
That is very close to saying that they ought to be pursued where they are in the wider public interest.
Amendment No. 25 seeks to give the commissioner a locus in non-devolved matters by enabling the commissioner to examine the case of an older person in Wales in connection with his power to make representations to the Assembly about non-devolved matters. I have already made clear the Government's position on this matter on many occasions. We cannot accept that the commissioner should be able to exercise his powers directly in relation to non-devolved matters.
In the light of these explanations I hope that the noble Lord will feel able to withdraw his amendment.
My Lords, I want to reply to the Minister's explanation. When this matter came before the Committee the noble Lord said—and this is to show that I have read what he said—that:
"The power to examine individual cases will be an important function of the commissioner, and one that may involve considerable resources".—[Official Report, 26/10/05; col. GC 352.]
That is right—it is an important function of the commissioner. Why then, if the commissioner wishes to look at non-devolved matters under Clause 23, should he be debarred from looking at an individual case? Noble Lords will know from their own experience that it is generally speaking the individual case that triggers the wider picture and which causes an investigation to start. It is not some general feeling among the population that it is time to do something about a particular issue—it is an individual case that is important. This is a weakness in the Bill which we will return to at Third Reading.
moved Amendment No. 27:
Page 7, line 18, leave out "6(5) or 9, or" and insert "9,
( ) without lawful excuse, has failed to comply with a requirement to provide information which was imposed in the exercise of a power conferred by regulations made under section 6(5) or 9(5), or"
On Question, amendment agreed to.
Clause 11 [Guidance]:
My Lords, I start from the standpoint that the guidance on best practice is potentially an enormous and important tool for the commissioner. It is my understanding of general law that the commissioner could issue a non-statutory code of practice without being empowered to do so in any Act of Parliament; it is an implied power.
I am pleased that the guidance is to be issued on the exercise of a power in the Bill. I think that will help greatly to increase the legitimacy of the court but it would be an even greater enhancement if it was issued in pursuance of a duty.
The impact of the guidance on best practice will be at least twofold. I envisage that it will set out in some detail the general principles and standards which the commissioner will endeavour to promote and facilitate in all parts of Wales, subject obviously to local circumstances, so that we can have the best possible service. Secondly, the guidance will be readily available to the elderly and to members of the public, who are entitled to know what standards of service should be available to them in their own community. Those two benefits, taken together, indicate the need for "may" to be replaced by "must". I beg to move.
My Lords, the amendment seeks to replace the commissioner's power to issue best practice guidance in Clause 11 with a duty to do so. That would oblige the commissioner to produce and issue best practice guidance in connection with any matter relating to the interests of older people in Wales. It would be a substantial and onerous duty with significant cost and capacity implications. Our aspirations for the commissioner's guidance are very much in tune with those of my noble friend. It is an important function, which must be discharged effectively. But the Government consider that it is best achieved by providing the commissioner with the discretion to decide how, when and on what subjects he should issue best practice guidance.
We do not want to oblige the commissioner to flood the prescribed bodies with guidance on everything and anything that he looks into; that would surely be unworkable and undesirable. Furthermore, the commissioner will have to set a budget each year, and he will need to make decisions on the most appropriate use of his resources in accordance with his priorities. I hope that what I have said will reassure my noble friend, and I invite him to withdraw his amendment.
moved Amendment No. 30:
Page 7, line 36, at end insert—
"(4) Where guidance issued under this section is applicable to a person mentioned in subsection (2), that person must have regard to the guidance in discharging his functions.
(5) In discharging his functions in respect of a person mentioned in subsection (2), the Commissioner may have regard to the extent to which the person has complied with any guidance issued under this section which is applicable to that person."
On Question, amendment agreed to.
Clause 12 [Power of entry and of interviewing in private]:
moved Amendment No. 31:
Page 7, line 40, leave out ", other than a private dwelling,"
My Lords, in trying to insert here the right of the commissioner to intervene in the life of a person who is cared for in his or her own home we have a fundamental decision to make. The whole ethos and force of this measure is to ensure that no single elderly person anywhere in Wales suffers any harm at all. So many elderly people suffer in their own homes because of inappropriate care, or even sometimes because of people's deliberate actions to make their lives a misery. We know from the Health Committee that 500,000 elderly people suffered abuse the year before last. That number is colossal, and many suffer in their own homes. What we are asking here is that no person, wherever he or she is residing, should suffer harm in any way at all.
Most families and carers, as we know, are doing a remarkable job, and we often say how much we appreciate the work that is being done by so many of them. But now and again the newspapers report an account of neglect or deliberate harm to an elderly person. How do we prevent that? As we mentioned in Grand Committee, we have adult protection co-ordinators appointed by the various councils. They can get a magistrate's order and enter a home. The police can also do that. However, surely in cases of domestic violence, it should be possible to enter a home—if a child is going to be hurt it is possible to enter the home. All we ask is that it should be possible for the Commissioner for Older People to enter homes and make sure that, in cases of suspected abuse, he is able to look after and care for the person who is suffering. I beg to move.
My Lords, I understand and sympathise entirely with the reasons behind this amendment. None of us would want to think that an older person might be left to suffer unnecessarily behind closed doors. However, the simple and compelling fact remains that to give the commissioner the power to enter an individual's private home would be a disproportionate interference with an individual's right to privacy and in breach of the Human Rights Act. It would also set a precedent among other commissioners and ombudsmen, none of whom has such a power.
If the commissioner had concerns about the personal safety of an older person, he would be able to pass those on to the appropriate authorities, such as the police or social services, for action. It would not be for him to try to deal with such situations himself. For example, if the police believed that an older person was in danger, they would be able to enter premises using their wide investigatory powers. A crucial point is that we must remember that the commissioner will not be working in isolation, but operating within an existing framework of legal protection for vulnerable people. Having said that, I hope that the noble Lord will agree that the clause must remain as drafted.
My Lords, I have heard the Minister's response. I am not entirely satisfied with it because to put any territorial area outside the boundaries of where the commissioner can intervene makes it possible for people to be harmed or abused in those situations. We may reconsider the matter at Third Reading, but this evening, I beg leave to withdraw the amendment.
moved Amendment No. 32:
Page 7, line 42, at end insert—
"( ) interview the older person in private in the presence of an independent advocate."
This amendment arises from submissions by the Law Society and Age Concern. Age Concern is worried that people interviewed in their own homes could be under undue influence from members of the family or others in the home. It wants the person who has called for someone to intervene in a nursing home or residential home to be able to have an advocate appointed—someone who can be independent of any allegation of abuse or ill treatment. This amendment should be made to the Bill.
Age Concern is worried that an elderly person might depend on a care worker or family member and might be reluctant or afraid to offend that family member. Pressure might be brought to bear—intentionally or unintentionally—on the older person not to consent to an interview in private. Age Concern suggests that there should never be any case where an older person is unable to shout for help or make his situation known to others. So, as with the organisations that have submitted their evidence, we ask that wherever there is an interview with an older person there is always the opportunity for an independent advocate to be present. I beg to move.
My Lords, as we have heard, this amendment seeks to enable an older person to have an independent advocate present when being interviewed by the commissioner in connection with his functions under Clauses 3 and 5 of the Bill.
I made it absolutely clear in Committee that, although not specifically stated on the face of the Bill, an older person may be interviewed by the commissioner with a third party present if they so wish. There may be circumstances in which an older person may wish to give their consent to be interviewed only if an independent advocate is present. Clause 12(1)(b) would enable this to happen without the need for any amendment. If an older person does not wish to have an independent advocate present they may make that decision for themselves.
The noble Lord, Lord Livsey of Talgarth, asked in Committee what might happen in a situation where an older person was unable to give their consent to being interviewed. The basic position is that there will be a presumption that a person is capable of giving their consent unless the contrary can be shown. The question is whether the person is capable of giving their consent in relation to the specific matter for which consent is sought. The issue of capacity and consent is a very difficult legal area and I think it is an area where the commissioner would have to tread very carefully and in accordance with legal and medical advice.
The need for consent is an important principle here, and in circumstances where an older person lacks capacity to give that consent, it would normally not be appropriate for the commissioner to undertake an interview. Neither would it be appropriate for an independent advocate or another third party to give consent on behalf of the older person. I emphasise again that an independent advocate should only be present where the older person wishes this to happen.
In the light of what I have said, I hope that the noble Lord will, on reflection, withdraw his amendment.
My Lords, if there were a large number of people present here tonight, I would take this to the vote. It is an important section of the Bill. It is our contention that in no situation shall a person be beyond the reach of the commissioner. This is putting a private dwelling place, or even a nursing home—where who knows what happens—beyond the reach of the commissioner. Tonight, however, hoping that we will return to it again, I beg leave to withdraw the amendment.
My Lords, this amendment pursues a point that I raised at the end of Grand Committee, when the Government introduced what was then their new Clause 19, dealing with the complaints procedure in respect of the commissioner.
This clause is about complaints against the commissioner, the possibility that the commissioner may not have discharged his or her duties properly, and the procedures that would be required if an individual thought that the commission had failed him or her. It is a question not of the commission's independence but of who should finally approve the procedures of complaint against the commissioner.
In this clause, the commissioner must consult the Assembly and, having amended the complaints procedure in the light of such consultation, send a document to the Assembly, as in subsection (5). I suggest that there is a case for the Assembly having greater responsibility for these procedures. They are drafted to ensure that the individual has a right to complain against the commissioner's performance of his or her duties. I do not believe that, in that instance, the commissioner should be the final arbiter. What if, for example, the Assembly did not think that the commissioner was bringing forward procedures that were robust and rigorous enough to deal with the complaints against him or her?
What if the Assembly found itself at loggerheads over these procedures? Under this provision, the commissioner could stick to his or her guns and establish a procedure for complaint about him or herself. It is not the case—as my noble friend indicated very briefly at the end of our discussion—that an amendment of this kind would somehow impinge upon the commissioner's independence. This is nothing to do with the discharge of the commissioner's functions in, for example, pursuing grievances. Of course he or she must have total independence in that respect, but I doubt he or she should have total independence in dealing with developing a complaints procedure against him or herself. In this case, there is a strong case for the commissioner to seek the approval of the Assembly when establishing such procedures. I beg to move.
My Lords, I warmly support the amendment tabled by my noble friend Lord Rowlands. As he has so clearly explained, under the Bill the procedure for the investigation of complaints against the commissioner is designed by the commissioner himself. It is designed by the person against whom the complaint is made. Unless the procedure is approved by an independent third party or the Assembly, there is at least a possibility of a suspicion that the commissioner will be regarded as a judge and party in his own cause. Indeed, it is equally in the interest of the commissioner himself, and of all other parties, that the procedure should command confidence. The more thought that the Government can give to this matter, the better.
My Lords, we on these Benches support this amendment. Without some approval by a third party, the procedure would possibly be subject to judicial review and may very well be incompatible with the European Convention on Human Rights. There is no need to risk matters of that sort. The approval of the Assembly is an obvious good.
My Lords, I, too, rise to support the thrust of the amendment. I anticipate that the Minister's reply will be to the effect that consultation already implies that the procedure could not be carried further unless "consultation" meant the approval of the Assembly. The amendment requires a positive approach by the Assembly. That approval should go beyond the consultative stage, which might imply a minimal degree of approval by the Assembly of what is proposed. The Assembly must fully approve the procedure adopted.
My Lords, I have listened carefully to what has been said on this amendment. Some extremely good points have been made. I would like an opportunity to reflect on what noble Lords have said before Third Reading. Given that commitment, I would be grateful if the noble Lord would withdraw his amendment.
My Lords, this is a very contentious issue. The Government's strategy document for older people, Opportunity Age—Meeting the challenges of ageing in the 21st century, which has been my bedside reading for the past few weeks, was referred to by the Minister and me in Committee. It sets the starting age limit at age 50. In Committee, the Minister agreed with me that from the age of 50 serious issues of disadvantage and discrimination affect some people as they move towards old age. The noble Lord's argument for maintaining the threshold at 60 in the Bill—and not moving to 50—is that the commissioner's primary duty is to protect those who receive services as older people in Wales. Generally, the provision of services begins at that age.
The needs of those aged between 50 and 60 will be provided for, I assume, by the general developments within that strategy document. The Minister acknowledges the importance of supporting the over-50s as an age group that is vulnerable to the onslaught of what one might call the concomitant disadvantages of old age. It is an age-group that the White Paper acknowledges has, for example, a lower than average level of employment. My argument is that once the strategy starts providing for people's needs, by definition, it is a service. Such provision would fit very snugly under the commissioner's remit in Wales without argument about devolved or non-devolved areas. If the strategy does not serve a purpose, we may well wonder what it does, apart from being a statement of intent.
Another point that arises is the tremendous emphasis in Opportunity Age on 50 as the starting age. Would it be fair to Welsh people who are over 50 if their English neighbours of that age are entitled to different and special support and treatment? England may well decide to give over-50s special services. Would the Welsh qualify? If not, would that put the commissioner in Wales, and the Welsh people, very much out of kilter with those in England? Surely that would be an undesirable effect of devolution. Addressing the needs of those aged 50 and over is a matter of anticipation and it is written into Opportunity Age, which is a key government document. To take a decision that goes against the content of that White Paper is asking for trouble. I rest my case, and ask the Government to consider again the starting age of 60 and to replace it with 50, as England has already done. I beg to move.
As I said in Grand Committee, our primary concern is the greatly increased workload that the amendment would place on the commissioner. This would in turn reduce the effectiveness of his role. Setting the age threshold at 50 would provide the commissioner with too broad a remit, covering one-third of the population of Wales.
I would also like to address the concerns that were voiced in Grand Committee that older people in Wales would somehow be disadvantaged in comparison with those in England. The noble Lord, Lord Roberts, returned to this point this evening. I can clarify that the strategy for older people in Wales—like its sister strategy Opportunity Age—has an age threshold of 50. Both documents set out a way forward for planning for old age. The new age equality regulations which will apply equally in England and Wales set no qualifying age and safeguard people of any age from unequal treatment at work. The Commission for Equality and Human Rights will likewise operate in Wales as well as in England to promote human rights and enforce the age equality and disability legislation.
I reassure the noble Lord, Lord Roberts of Conwy, that there will be nothing available in England which will not be available to older people in Wales, all from the age of 50. The sole difference between the two countries is that there will be a Commission for Older People in Wales that will offer additional support to people aged 60 or more in Wales. In Grand Committee the noble Lord made the point that needs cannot be defined purely by age. He talked of people aged between 50 and 60 who may be experiencing health problems and queried whether there would be some flexibility for the commissioner to operate on their behalf. Of course there will be deserving cases—no doubt along the lines that the noble Lord indicated—that the commissioner will not be able to involve himself in because the person concerned is under 60. But we have to draw a line somewhere and we believe that 60 is a sensible and pragmatic choice.
A number of the issues that the commissioner uncovers that are problematic for people aged 60 or more and then addresses will have a positive effect on the experiences of people who are slightly younger and share similar difficulties. Standards will be raised for a wider age group than just those of 60 or more. I hope that with this explanation the noble Lord, Lord Roberts of Conwy, will be able to withdraw the amendment.