My Lords, Amendments Nos. 1 and 2 seek to soften the line, break down the wall, that confines the commissioner and his exercise of powers to areas where the Assembly has functions; that is, devolved areas of government. Clause 2(2) sets that line firmly. Our Amendment No. 1 seeks to soften it. Why? The limitation on the commissioner's exercise of his functions to devolved areas only is unrealistic, as I believe we have all recognised in earlier discussions. Individual cases do not recognise departmental boundaries or fall neatly into devolved or non-devolved areas.
It is clear from the nature of those functions, as described in subsection (1), that the commissioner will not be able, in practice, to draw a line that confines him to the devolved areas only. The Government appear to accept in Clause 2(3) that the commissioner may find himself in non-devolved areas. Therefore, provision is made that he may make representations to the Assembly on,
"any matter relating to the interests of older people in Wales".
It will then be for the Assembly to decide what action to take, if any: it could be a lengthy process or an urgent matter requiring immediate attention.
It is that consideration of practical necessity that underlies our second amendment, which seeks to ensure that the commissioner has direct access to the relevant Secretary of State, if necessary. That would certainly be the case if there is urgency in the matter.
The Minister will say that such changes as our amendments propose will blur the demarcation lines between devolved and non-devolved areas, between Assembly appointees responsible to that body and operating in specific areas, and civil servants employed by other departments of state. I understand the Government's concern and anxiety to prevent confusion, but they must recognise the realities on the ground—the real world in which the commissioner will operate—where there are no clear lines of demarcation. Individual cases can involve a variety of departments, some of which are responsible to the Assembly and some of which are responsible to the Westminster Parliament.
The Government are wrong to specify the commissioner's "No Go" areas quite so firmly: they should allow some flexibility. Otherwise, there may be tension. The public simply will not understand why the commissioner can operate in one area, but not in another. This prescription seems to fly in the face of the Minister's wish, expressed at Report stage, that the commissioner should have,
"freedom to choose when, in what instances, and how he will exercise his functions".—[Hansard, 9/11/05; col. 682.]
He requires the latitude couched in our amendments to achieve that freedom. I beg to move.
My Lords, we on these Benches support the amendments put forward by the noble Lord, Lord Roberts of Conwy. This is a familiar theme. I have spoken on many occasions on this topic in relation to the Children's Commissioner for Wales Bill and in relation to this Bill. I have yet to hear a full and satisfactory explanation of why the commissioner is prevented from promoting the awareness of the interests of older people in non-devolved matters. Those non-devolved matters contain the very issues which are of concern to old people—specifically, social security provision and so on. Those should be well within the purview of the commissioner.
My Lords, I want to express my support for both of the amendments. The commissioner should be able to cross the boundary between the devolved and the non-devolved functions of government. As the noble Lord, Lord Thomas, has just said, we debated similar amendments when the Children's Commissioner for Wales Bill was before the House, but they were firmly rejected. I understand that that is still the position of the Government. However, I hope the day will come when both amendments will prevail.
My Lords, I rise briefly to support the amendment. This is somewhat strange when we consider that the Assembly has specific powers in relation to devolved matters and is entitled to be concerned with a wider range of issues entirely outside those devolved functions. It is therefore wrong to cabin, crib and confine the commissioner to matters which are devolved. As has already been pointed out, there will be many non-devolved areas which have every possible bearing on the situation of older people in Wales.
My Lords, I shall speak first to Amendment No. 1 before turning to Amendment No. 2, both of which are tabled in the names of the noble Lords, Lord Roberts of Conwy and Lord Luke. Amendment No. 1 would cast doubt on the restriction that the exercise of the commissioner's general function must be in the fields in which the Assembly has functions. As the noble Lord, Lord Thomas of Gresford, pointed out, this is an issue we have discussed at length. I have to say again, as I have said at every stage of the Bill, that this is the constitutional situation that currently exists. The Bill does not provide a vehicle for changing it and in our view it is not appropriate that it should. I bore myself by repeating that and I am sure I bore other noble Lords.
As noble Lords are aware, the restriction is designed to give maximum clarity about the commissioner's role within the devolution settlement. Consequently, the Government cannot accept this amendment. It would remove the certainty in the Bill about the commissioner's remit in non-devolved matters. It might also put the commissioner in a difficult position and force him or her to try to navigate their own way around some very complex issues. I do not think that would be either desirable or helpful for older people in Wales. More broadly, this amendment is a variation on the theme which we have discussed many times and at length in Grand Committee and on Report. I hope that I have made the Government's policy perfectly clear and I have little intention of going over old ground again this evening. Suffice to say that the establishment of the commissioner and the functions of the office must be consistent with the existing constitutional settlement.
Amendment No. 2 also seeks to chip away at the existing devolution arrangements. It would allow the commissioner to make representations directly to the Secretary of State with policy responsibility for the subject matter of the representation as well as to the Assembly. The Government of Wales Act makes specific provision for the Assembly to make representations about any matter affecting Wales. That must represent the proper constitutional route for representations. The commissioner must make his representations via the Assembly as the elected body with democratic responsibility for the people of Wales.
The noble Lord, Lord Roberts of Conwy, acknowledged the logic of the Government's position on Report. He noted that the commissioner will be appointed and financed by the Assembly, and stated that,
"it is understandable that this Bill should confine his functions and powers to areas in which the Assembly also has functions".—[Hansard, 9/11/05; col. 689.]
The noble Lord may not agree with it, but he does understand it. I am sure he also understands that the Government will not budge on this matter. With that explanation, I hope he will feel able to withdraw his amendment.
My Lords, I am grateful to noble Lords who expressed their support for these amendments, which I still maintain show the degree of flexibility that is to be required in practice so far as concerns the commissioner and his functions. They are very broad functions. They do not respect devolved areas, and neither do the individual cases that we know will confront him in real life, which will certainly involve both types of area. However, the Government feel strongly on this matter, as the Minister has indicated yet again, and it is unlikely that we will shift him on these points. We have done our best. Having done so, I beg leave to withdraw the amendment.
moved Amendment No. 3:
After Clause 8, insert the following new clause—
"RESEARCH AND EDUCATIONAL ACTIVITIES
(1) The Commissioner may, in connection with any of his functions—
(a) undertake or commission research;
(b) give assistance to another to undertake or commission research;
(c) carry out or commission the carrying out of educational activities;
(d) give assistance to another to carry out or commission the carrying out of educational activities.
(2) In this section, "assistance" includes financial assistance."
My Lords, I shall speak first to government Amendment No. 3 before turning to government Amendments Nos. 6, 14 and 17, all of which concern the commissioner's ability to undertake or commission research and educational activities. On Report, my noble friends Lord Prys-Davies and Lord Rowlands expressed clearly their wish to see provision made in the Bill for the commissioner to undertake research and educational activities. The Government's position was that the Bill as drafted already gave the commissioner the power to do so. However, we have listened carefully to the views put forward, and acknowledge the concern that there should be no uncertainty about the commissioner's powers to undertake such research. I have therefore tabled a new clause, which makes express provision for the commissioner to undertake, commission or provide assistance, including financial assistance, for research or educational activities in connection with any of his functions. Naturally, in those instances where the commissioner's functions are restricted to devolved fields, it is only appropriate that his power to undertake research and educational activities is similarly restricted.
There are three areas of the Bill to which the need for such a restriction is pertinent: the examination of cases, the making of reports and the conferring of supplementary functions on the commissioner. These restrictions are dealt with by way of Amendments Nos. 6, 14 and 17 respectively. I beg to move.
My Lords, I am extremely grateful to my noble friend for having tabled Amendment No. 3. On the other hand, I regret that the areas to be researched are restricted. They are important limitations. Nevertheless, Amendment No. 3 will be an important facility in the hands of the commissioner, and I am grateful to the Government for tabling the amendment.
My Lords, in moving this amendment, I shall speak also to Amendment No. 5. Again we are back on issues of powers that are not devolved. The purpose of these amendments is to widen the power of the commissioner to look at the cases of particular persons who are or have been older people in Wales, in connection with the commissioner's functions. One of those functions is for him to consider and make representations to the Assembly about any matter relating to the interests of older people in Wales. Again we come to an artificial distinction; whereas he can look at individual cases within the devolved areas, he cannot look at individual cases where the matter involved is non-devolved. For example, he could not examine an individual person's problems with his pension.
To my mind, that takes a great deal away from the thrust of the Bill. We welcome this Bill; we have welcomed the Commissioner for Older People for Wales. It is a privilege to have such a commissioner, but to restrict his powers in this way and in important areas—I am merely repeating what I have said in relation to other amendments—destroys a great deal of the worth of his appointment.
In relation to the Children's Commissioner, we have been proud that, unlike the English commissioner, the Welsh commissioner has been able to examine individual cases. I am sorry that this is not going to happen with the Commissioner for Older People. I beg to move.
My Lords, I shall speak first to Amendment No. 4 before turning to Amendment No. 5, both standing in the names of the noble Lords, Lord Livsey of Talgarth, Lord Roberts of Llandudno and Lord Thomas of Gresford.
Amendment No. 4 seeks to enable the Assembly to make provision in regulations for the examination of cases by the commissioner in connection with his functions and powers under Clauses 2, 3, 5 and 8. The Bill enables the commissioner to examine an individual case in connection with his functions. This reference to "functions" includes all of the commissioner's powers and duties except that of making representation to the Assembly on non-devolved matters.
We will not agree on this issue. It comes up time and again, under almost any amendment. We have the new Wales Bill coming shortly and I am afraid that we will have to wait until then to look at the question of further devolution of powers to Wales. The amendment does not appear to add anything to the Bill. In fact, it might serve to narrow the commissioner's remit by preventing him examining a case in connection with any further supplementary powers that may be conferred on him by virtue of Clause 13.
Amendment No. 5 seeks to give the commissioner a locus in non-devolved matters by enabling him or her to examine the case of an older person in Wales in connection with his power to make representation to the Assembly on non-devolved matters. We discussed this on Report and in Committee. As I explained on both those occasions, the Government's position is that it would be a breach of the constitutional settlement to allow the commissioner to exercise his powers directly in relation to non-devolved matters.
It is important to recognise that in examining the circumstances of a particular case the commissioner will be able to require persons to provide him with information, explanations or assistance. He will also be able to require the attendance of witnesses in connection with such an examination and to examine those witnesses. If the noble Lords' amendments were to be accepted, the consequence would be that UK-wide public bodies and UK government departments with responsibility for non-devolved matters could be required to provide the commissioner with information or assistance. Individuals working in these organisations could also be required by the commissioner to attend as witnesses.
Non-devolved functions are the responsibility of the UK Government and not of the Assembly. I hope that this is the last time that I will have to make that statement, which I think we are all fed up with. To enable a commissioner established by the Assembly and for Wales to exercise such powers in relation to non-devolved matters would simply not be acceptable. I ask the noble Lord to withdraw his two amendments.
My Lords, the noble Lord should know that I have a certain persistence in these matters. In 1964 I stood as a parliamentary candidate in Rhyl, on a platform calling for a Parliament for Wales. In 1967 I drafted a Bill, which was presented in another place, for a Parliament for Wales with the sort of powers that I am anxious that this Government should give to Wales now. It is a lifelong matter.
I hope that the noble Lord, who is perhaps not of the same history, will not be too critical of me for pursuing these matters. I beg leave to withdraw the amendment.
My Lords, we sometimes look at something and say, "What this could have been". Then we say, "But it has fallen far short of what we would like it to be". But possibly half a loaf is better than no bread. This might just be the beginning of an evolution of thinking in this direction.
I draw your Lordships' attention to Amendment No. 8. In all our contributions from the Liberal Democrat Benches we are concerned that no older person in any circumstances whatever will feel that they are beyond the reach of a commissioner and of help. That is all that we want. Cross-border matters and non-devolved matters all affect older people. As my noble friend Lord Thomas of Gresford said, most problems that really affect people are connected with pensions and benefits. Those, of course, are non-devolved matters and, being so, the commissioner is unable to tackle them in any way at all. However, the citizen's advice bureaux tell us that those are the matters which most concern people.
As the Minister said, the commissioner is appointed by the National Assembly. We have to accept the limitations of that office. As the Minister also said, we are to have a Government of Wales Bill. When that goes through the House we may have to revisit the powers of the Commissioner for Older People in Wales.
The amendment to which I draw noble Lords' attention would ensure that no older person in a hospital, a care home, a residential home or even in his own home was beyond the reach of the commissioner's help. That is why we seek to enable the commissioner to interview a person in the latter's own home at the request of that individual.
The elder abuse movement states that most instances of ill treatment of older people occur in their own homes. The Community and District Nursing Association conducted an elder abuse survey. Some 276 responses were received. The survey states:
"The results have shown that 40% [of the responses] have witnessed or have been aware of elder abuse during 2004", with 82 per cent of those instances occurring in the patient's own home. The survey continues:
"In 77% of cases referred to they are carried out by a family member of the victim".
That is a very real worry. A person's own home should, at his or her invitation, be open to a commissioner to enable the latter to help the person. I am told that an opinion poll to be released in the next few weeks will show that 19 per cent of the general public are personally aware of elder abuse.
We could press the amendments but, following extensive discussions, I believe that Her Majesty's Government are aware of the situation and that they are convinced that this Bill and existing legislation are sufficient to protect older people. The Minister knows that I am not totally convinced by that argument. However, the government amendments that are tabled today go a considerable way to meet our concerns, for which I am grateful.
I may not speak again tonight as that enables us to cover the ground quickly. Therefore, I take this opportunity to thank the noble Lord, Lord Evans, and his colleagues for being open to discussion and for having responded to our concerns to a certain extent. I also thank the Bill team, who have been trying to meet our criticisms and anxieties. Having spoken to the amendment, I will beg leave to withdraw it at the appropriate time. I welcome government Amendments Nos. 11 and 16. I beg to move.
My Lords, before I speak to Amendment No. 7, I say to the noble Lord, Lord Thomas of Gresford, that I have absolutely no argument with him. I have sympathy for his longstanding view that more powers ought to be passed to the Welsh Assembly. At every possible juncture, I have simply been saying that this Bill is not the vehicle in which to do that. The vehicle will be the Government of Wales Bill, which is coming later. If I have shown myself to be irritated with the noble Lord, Lord Thomas of Gresford, I apologise. There was no intention to do so; there was simply a certain frustration that we were going around in circles on this matter.
The amendment would extend the purposes for which the commissioner may enter premises and interview an older person accommodated or cared for there by giving him a power to enter and interview for the purposes of his general functions under Clause 2. The purpose of the power to enter and interview is to facilitate the commissioner's specific powers to review arrangements and the discharge of functions. That may involve the need to obtain information from older people in relation to whom functions have been discharged or arrangements made. For example, an older person receiving domiciliary care from a local authority or regulated services from the provider of such services might be interviewed by the commissioner.
In contrast, the commissioner's powers under Clause 2 are very general and are primarily concerned with more strategic matters of public policy. In exercising those general functions, the commissioner will be relying primarily on his own knowledge and expertise and on the expertise and experience of relevant stakeholder groups and professionals. The Government's view, therefore, is that to give the commissioner such a broad power would be both unnecessary and disproportionate. It would also be setting a precedent among other commissioners and ombudsmen, none of whom has such a power. I respectfully ask the noble Lord to withdraw his amendment.
My Lords, I shall speak first to government Amendments Nos. 9 and 11 before turning to Amendment No. 10 and government Amendments Nos. 15 and 16. On Report, the noble Lord, Lord Roberts of Llandudno, expressed his firm view that the Bill should ensure that there is the opportunity for an older person to be interviewed by the commissioner in the presence of an independent advocate. We agree that if an older person wants another person to be present when he or she is being interviewed by the commissioner, it should be a requirement that the interview must be conducted in the presence of that other person. Therefore, I have tabled government Amendments Nos. 9 and 11 to make that explicit in the Bill.
Government Amendment No. 9 is a drafting amendment that simply removes "in private" from Clause 12(1)(b). That enables the first element of government Amendment No. 11 to provide that the commissioner must, if an older person so requires, interview him or her in the presence of another person of their choosing. That could include an independent advocate, although it would not be limited to such advocates alone. In circumstances where no such request is made by the older person in question, the second element of Amendment No. 11 requires that such an interview can take place in the presence of another person only to the extent that the commissioner and the older person have agreed that others may be present. I hope noble Lords will accept that this is designed to be a thoughtful response to the issues underlying their previous remarks and that Amendment No. 10 is therefore unnecessary.
Government Amendments Nos. 15 and 16 have been tabled to ensure that where an older person who has agreed to be interviewed by the commissioner wishes to be interviewed in the presence of another person, that person must be present.
Clause 13 enables the Assembly to make regulations that confer on the commissioner further supplementary functions for any purpose connected with his existing functions. Subsection (3) of that clause provides that such regulations may, for the purposes of any such supplementary functions, confer power on the commissioner to interview an older person.
Government Amendments Nos. 15 and 16 ensure that any such power to interview an older person will mirror that in Clause 12. Thus the commissioner must, if an older person so requires, interview him or her in the presence of another person or, where no such request is made, in the presence of others only to the extent that the commissioner and the older person are content for others to be present. I beg to move.
My Lords, I respond once again to the amendments tabled by the Government. We appreciate what they have done. As I hinted before, we shall not press our amendments.
moved Amendment No. 11:
Page 8, line 15, at end insert—
"( ) The interview must be conducted—
(a) if the older person requires another person to be present, in that other person's presence; and
(b) otherwise in the presence of others only to the extent that the older person and the Commissioner have consented to their being present."
On Question, amendment agreed to.
Clause 13 [Further supplementary functions]:
[Amendments Nos. 12 and 13 not moved.]
moved Amendments Nos. 14 to 16:
Page 8, line 22, leave out from "his" to "exercised" and insert "powers under sections 2(3) and (Research and educational activities), to the extent that they are"
Page 8, line 30, leave out "in private"
Page 8, line 30, at end insert—
"( ) Where regulations under subsection (1) confer power to interview an older person, the interview must be conducted—
(a) if the older person requires another person to be present, in that other person's presence; and
(b) otherwise in the presence of others only to the extent that the older person and the Commissioner have consented to their being present."
On Question, amendments agreed to.
Clause 14 [Reports following discharge of particular functions]:
My Lords, on Report, my noble friends Lord Rowlands and Lord Prys-Davies, supported by the noble Lords, Lord Thomas of Gresford and Lord Roberts of Llandudno, made some extremely interesting points about the requirement in the Bill for the commissioner to establish a complaints procedure and consult with the Assembly on it. My noble friends wish to see a provision made not only for the commissioner to consult the Assembly about his complaints procedure, but to require him to obtain the Assembly's approval of it. We have reflected carefully on the views expressed on Report. Consequently, I have tabled government Amendment No. 18 which addresses the matter. By casting the Assembly in the role of final arbiter of the commissioner's complaints procedure, instead of the commissioner, the amendment will ensure that the procedure is sufficiently rigorous and impartial. I beg to move.
My Lords, in moving this amendment I shall speak also to Amendment No. 20.
There was a time when the detailed requirements in connection with appointments, such as that for the Commissioner for Older People, would be spelt out in primary legislation. That was the case with the Children's Commissioner; the terms and duration of the appointment were on the face of the Bill. Now, we are presented with a brief clause stating that there is to be a Commissioner for Older People, and a schedule which makes further provision. Paragraph 2 of the schedule provides that regulations "may make provision"—note the word "may"—as to the appointment, including any conditions, and as to the term of tenure, its cessation and the removal or suspension of the office holder.
My first amendment deals with the permissive aspect of these regulations. Surely they must—not "may"—be made. How else, other than by secondary legislation, can the appointment be properly made? I note that paragraph 3 of the schedule states that the Assembly "must" do various things—other paragraphs also use "must"—such as pay the commissioner remuneration and allowances. Why is that a "must" and the making of regulations establishing the post a "may"? There must be a firm commitment to secondary legislation, or the rest becomes a nonsense.
On Amendment No. 20, I think the Minister takes the view that a possible reappointment would be dealt with by the regulations providing for the appointment in the first place. I am not at all happy that we are leaving so much that could be put on the face of the Bill to subsequent secondary legislation. It is a time-consuming procedure, which serves no useful purpose other than to give the Assembly the trappings and semblance of legislative power. Alas, we shall see more of this so-called framework legislation when we come to the new Government of Wales Bill. We have already had a glimpse of it this evening with the NHS Redress Bill. I beg to move.
My Lords, the intention of Amendment No. 19, which stands in the names of the noble Lords, Lord Roberts of Conwy and Lord Luke, appears to be to ensure that the Assembly makes regulations that provide for the appointment and term of office of the commissioner. The Government do not believe that such an amendment is necessary. The Assembly is committed to establishing the office of the commissioner, and Clause 1 of the Bill makes this intention clear. Noble Lords may also be reassured to know that the current wording in the schedule is identical to that found in the Care Standards Act 2000, pursuant to which the Children's Commissioner was appointed.
Amendment No. 20 is the same in its intent as other amendments on this matter that were fully debated both in Committee and on Report. It seeks to make explicit provisions for regulations to deal with the reappointment of a commissioner, as well as for the initial appointment. I reassure the noble Lord that the term "appointment" most definitely encompasses reappointment. The Assembly will be able to make provision about this matter in regulations, and it has signalled its commitment to do so in its statement of policy intentions. Indeed, based on the views expressed in public consultation on the matter, the Assembly plans to provide for a four-year term, renewable once.
During our consideration of a similar amendment on Report, the noble Lord, Lord Roberts of Conwy, said that his primary purpose in tabling the amendment was to draw attention to the differences in the provisions for reappointment of the Commissioner for Older People and the Children's Commissioner for Wales; he has retuned to that point this evening. However, the appointment and reappointment provision in this Bill is identical to that used in the Children's Commissioner for Wales legislation. The relevant paragraph states that:
"Regulations may make provision . . . as to the appointment of the Commissioner (including any conditions to be fulfilled for appointment)".
That is the exact form of words used in paragraph 2 of Schedule 1. I believe that the noble Lord, Lord Roberts of Conwy, may have been thinking of the UK Children's Commissioner, created by the Children Act 2004. The Act makes express provision for reappointment. However, in legislating for a Commissioner for Older People in Wales we have taken the decision that it is appropriate to follow the model for the Welsh Children's Commissioner and provide for the Assembly to determine the matter in regulations. That does not represent a change in legislative approach but a continuation of the approach taken in the Children's Commissioner for Wales legislation. I hope that with that explanation the noble Lord will feel able to withdraw his amendment.
My Lords, I am grateful to the Minister for his comments on the two amendments. I am still concerned, as he must be, with the variety of wording that we have in various Bills that he and I have dealt with regarding appointments. We do not as yet seem to have fixed on a standard form of words in Bills for the appointment of important officials such as the Commissioner for Older People. I am still mystified as to why regulations "may make provision" in paragraph 2 of Schedule 1, but the next paragraph begins, "The Assembly must". I would have thought that the prior regulations—the ones that may be made—are more essential and indeed a sine qua non to what follows in the succeeding paragraph. However, I have had the benefit of the Minister's explanation and I beg leave to withdraw the amendment.
My Lords, I give my grateful thanks to those Peers who have taken part in the debate over the past few months; in particular, the noble Lords, Lord Roberts of Conwy, Lord Roberts of Llandudno, Lord Livsey and Lord Thomas of Gresford. It has been for me an extraordinarily interesting experience. I am grateful to all Peers for the way and the spirit in which they have debated this interesting Bill. On behalf of all Peers I must thank the Box, the officials from the Wales Office and those from the Assembly, who have done the most wonderful job over the months. Our grateful thanks to all there. I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Lord Evans of Temple Guiting.)
My Lords, for the second time this week perhaps I may speak to the Motion that the Bill do now pass by reciprocating the thanks given to us all by the Minister, whose performance throughout the Bill's conduct has been eximious.
On Question, Bill passed, and sent to the Commons.