Nick
Ainger: Amendments Nos. 30 and 33 would place the Assembly
under obligations to make regulations providing for the examination of
cases by the commissioner and for the commissioner to make reports
following the discharge of any of his functions. The Government do not
believe that either amendment is necessary. The Assembly is committed
to establishing a commissioner for older people with powers of
examination and powers to make reports, and its statement of policy
intentions makes clear the intended detail of the regulations on those
matters. I assure hon. Members that in each case, the wording is
identical to that found in the Care Standards Act 2000, which
established the Children’s Commissioner for Wales.
There has been no question of regulations not being made in respect of
the Children’s Commissioner’s equivalent powers. I hope
that the hon. Member for Chesham and Amersham is satisfied on those
points. The hon. Lady
asked about the relationship with the Data Protection Act 1998 and the
Freedom of Information Act 2000. The clause will disapply neither. She
also asked how the Assembly will consult. They will consult widely on
the regulations and the Law Society is on the consultation list. The
consultation will be on the full draft regulations. On the timeliness
of reports, paragraph 45 of the statement of policy intentions lists
the people to whom it is intended that reports will be sent. That has
not altered since lunch time. I assure the hon. Lady that paragraph 47
reflects the intention that time scales for responses will be
set. 4.15
pm Amendments Nos.
31 and 34 would ensure that regulations made by the Assembly detail the
types of case that can be examined, the circumstances in which an
examination may be made and the procedure for conducting an
examination, as well as the contents of a report and the persons to
whom copies must be sent. Amendment No. 34 would also provide that the
regulations must enable the commissioner to make a joint report with
the Children’s Commissioner for Wales, make provision about the
publication of a report, and specify any further action that the
commissioner is required to take. Again, the amendments are
unnecessary. The Assembly has made clear its intention to include such
provision in the regulations—again, I draw the
Committee’s attention to the statement of policy intentions. It
is difficult to envisage how regulations that make provision for the
examination of cases and for the making of reports by the commissioner
could not include such
information. I come
now to the amendments tabled by the hon. Member for Ceredigion (Mark
Williams). Amendment No. 26 would enable the Assembly to make
regulations enabling the commissioner to examine the case of an older
person in Wales in connection with both his power to make
representations to the Assembly on non-devolved matters and his power
to undertake research and educational activities on non-devolved
matters. Amendment No. 28 would do something similar in relation to
non-devolved
matters. This morning,
we debated extensively non-devolved matters, the relationship that the
commissioner has in that respect, and how he would make representations
on behalf of older people in Wales. I know that I have not satisfied
the hon. Gentleman on those matters—I do not think that I have
satisfied any Opposition Member on them—but my position has not
changed since lunch time. The Government cannot accept the amendments,
for the reasons that I have explained at great length. I therefore ask
the hon. Lady and the hon. Gentleman to withdraw or not to press their
amendments.
Mrs.
Gillan: The Minister never seems to be able to satisfy me,
so I will have to continue to be dissatisfied, but I appreciate his
attempt to give answers to the questions that I posed. I was a bit
premature in posing
one of them, but I shall pose it again in relation to the next
amendment. I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
Mrs.
Gillan: I beg to move amendment No. 14, in clause 10, page
7, line 9, leave out subsection
(7). This is a probing
amendment about the High Court powers. Omitting subsection (7) would
not add to the coherence of the Bill, so I hope that the
Minister’s reply will not be based solely on the amendment. It
was tabled as a probing amendment, rather than as an amendment that I
hope will be made to the Bill. I simply wanted to inquire what other
bodies have the powers envisaged in subsection (7).
I posed my
next question previously because I was reading my scribbled notes
without the aid of my glasses. Will the commissioner or members of his
staff involved in examining cases be schooled in the rules of court
procedure, or have a clerk of the court in attendance? In addition,
does the power to apply to the High Court for the power of entry add
anything to the existing provisions relating to the police and
magistrates? That question was posed by City and County of Swansea
council and Swansea Network 50+.
In the event of hearings, does
the Minister envisage a place being specified for them to take place,
what would be the optimum staffing for hearings and examinations, and
to what extent could those activities involve witnesses
abroad?
Nick
Ainger: The hon. Lady has asked a number of questions on
clause 10. First, she asked what other organisations have similar
powers. In Wales, such powers certainly exist in other commissioner and
ombudsman legislation, including that which established the
Children’s Commissioner and the public service ombudsman, so I
hope that that reassures
her. The hon. Lady
also asked about the training to be given to the commissioner’s
staff. Obviously, it will be for the commissioner to ensure that his or
her staff have the training necessary to be involved in examination of
any case. It would be helpful if the Committee understood what clause
10 is about. It will ensure that the commissioner has the right powers
to obtain the evidence, to hold an inquiry, to carry out research and
to ensure that he or she is fully appraised of the case that may be
presented. The hon.
Lady alluded to concerns expressed by certain organisations. We
envisage the power being used not against individuals who make a
complaint, but against those who may be complained about. The ombudsman
and the Children’s Commissioner have such powers and, as far as
I am aware, no one has complained about those powers being exercised by
the ombudsman or the Children’s
Commissioner. The sort
of people who would be subject to the powers are likely to include
those connected with the provision of regulated services to older
people in Wales, such as providers or former providers of those
services, their employees and perhaps voluntary workers. They are also
likely to include people connected with the provision of other services
to older people in Wales by bodies such as the Assembly, a
schedule 2 body or any body that provides services in Wales on behalf of
or under arrangement with a schedule 3
body. The hon. Lady
asked about witnesses from abroad. They could be called by service of a
writ, but the commissioner would have no power to force them to attend.
She also asked whether a place would be specified for hearings and
about staffing. It will be for the commissioner to decide the most
appropriate venue for such
hearings.
Mrs.
Gillan: I am grateful to the Minister for giving way while
he receives inspiration. Can he tell me whether there will be a minimum
number of people present at a
hearing?
Nick
Ainger: No, I cannot. It will be the appropriate number
that is required. The
hon. Lady asked about the power to apply to the High Court, whether
that adds to the police’s powers of entry and so on, and whether
it goes further than the police powers. It will not affect the powers
of the police. It is needed to ensure that the commissioner can require
the information he needs to examine a case on his own behalf. I
reiterate that the purpose of the clause is to ensure that the
commissioner can carry out his job. There may be circumstances in which
he needs powers of entry and examination. Everybody appreciates that
when dealing with allegations of elder abuse, those powers are
important. Some people allege that the commissioner will not have any
teeth, but in that situation, he will have the teeth to carry
outhis role.
Mr.
Stephen Crabb (Preseli Pembrokeshire) (Con): Is the
Minister aware of any instances when those types of powers have been
exercised by the Children’s Commissioner for Wales or the public
service ombudsman in Wales?
Nick
Ainger: I cannot think of any off-hand, although the
commissioner carried out an inquiry into the case of a drama teacher
who had been accused of—well, we know the allegations—and
I am assured that the powers were used in that case. It is a good
example of a case in which allegations had been circulating for a long
time and the Children’s Commissioner finally obtained what an
awful lot of parents had been asking for: resolution and closure. It
could have been done only by the Children’s Commissioner using
those types of powers. With that assurance, I hope the hon. Lady will
withdraw her amendment.
Mrs.
Gillan: I am grateful to the Minister for putting more
flesh on the bones of the legislation, although I remain concerned
about the examination of cases. The Committee knows far too little
about the way in which the function will operate, however I live in
hope that when the regulations are produced, there will be more
details. I have tried to probe a little, but I understand that the
Assembly will consider the matter in detail.
I am still worried that the
legislation will set up a quasi-court of law, without the attendant
safeguards and the security of knowing the set up or how the
commissioner and his staff will use those powers. However, I appreciate
that the Minister has made as good an effort as possible, and I beg to
ask leave to withdraw the amendment. Amendment, by leave,
withdrawn.
Clause 10 ordered to stand
part of the Bill.
Clauses 11 and 12 ordered to
stand part of the Bill.
Clause
13
Power of entry and of
interviewing
Mrs.
Gillan: I beg to move amendment No. 8, in clause 13, page
8, line 19, leave out ‘if the older
person
consents'.
The
Chairman: With this it will be convenient to discuss
amendment No. 9, in clause 13, page 8, line 21, leave out paragraph
(a).
Mrs.
Gillan: The clause gives the commissioner or a person
authorised by him the power to enter premises that are not private
dwellings to interview older people with their consent and in
connection with the commissioner’s powers in clauses 3 or 5 to
reviewthe functions of specified people. I am using the
amendments to probe and elicit some answers from the
Minister. What
constitutes “a person
authorised by
him”— the
commissioner—in subsection (1)? Would that person have to be a
member of the commissioner’s staff, or could it be any person
procured by the commissioner to take part in the exercise of entering
premises and interviewing an older person? What safeguards are in place
to ensure that that person has received the necessary checks to be put
into that position? Would it be necessary for anybody who is authorised
by the commissioner to deal with such vulnerable people to have
undergone Criminal Records Bureau checks or other appropriate
checks? 4.30
pm Could the
Minister then define a private dwelling? There has been some discussion
about that, but we need to avoid uncertainties. Do private dwellings
include privately run care homes? If a care home was owned and operated
in the private sector, could an individual’s room be deemed to
be a private dwelling? I hope that the Minister will give more details
on how we define a private dwelling, because the power of entry is very
broad. The only building or structure that cannot be entered is a
private dwelling, so we need to be certain what the exact definition
is. I would like the
Minister to define “reasonable time”. Subsection (3)
says: “The
powers conferred by subsection (1) are exercisable at any reasonable
time.” When we read such
things in legislation we need to know what is in the Minister’s
mind as to what is a reasonable time. For example, an elderly person
might go to bed at 9 o’clock at night, but that would be a
reasonable time for me, as someone who does not go to
bed until about 1 or 2 o’clock in the morning.
[Laughter.] Settle down—it is because I am
working very hard on the Bill. Notwithstanding that, I would like the
Minister at least to explain the term “reasonable
time”. Under
subsection (1)(b), the interview with the older person may take
place “if the older
person consents.” When we
talk about consent, particularly that of older people, I am concerned
about how we interpret it in the case of people who might at first
appear to be capable of giving consent to such an interview, but who
are subsequently deemed not to be so. I am thinking of elderly people
who suffer from dementia and are not capable of giving that
consent—or, indeed, who withhold it—but who nonetheless
appear to be quite compos mentis. The Minister will be familiar with
the issue, because it covers a swathe of law in other instances, but it
would be interesting to hear what is in his mind in this
instance. Subsection
(2) says: “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.” Does that mean
that an interview could be conducted entirely in private? If so, that
would surely defeat the purpose of the interview. Because the interview
is part of a quasi-judicial process, there should be an independent
advocate or witness at all times. If information is adduced from an
interview of an older person conducted entirely in isolation, as a
one-on-one exercise, what safeguards are in place to ensure that the
individual gives their consent and is in a condition to give that
information? Can
someone refuse entry for reasonable cause or refuse to be interviewed?
Subsection (3)
says: “The
powers conferred by subsection (1) are exercisable at any reasonable
time.” Let us suppose
that someone in a home in multiple occupancy had died, or was close to
death. It would seem reasonable that the person in charge of the
building might refuse entry to the person authorised by the
commissioner. What would happen if the individual refused entry? Would
that be covered by “at any reasonable time” as a defence
to refusing entry and refusing to allow a person to be
interviewed? A matter
that also comes under the power of entry and of interview is that of
the qualifications of the person authorised by the commissioner to
carry out the interview, which are crucial when older and vulnerable
people are involved. I want to know what qualifications will be held by
someone carrying out that function. A great deal of trust will be put
in the individual concerned because he or she will have what appears to
be an absolute right of entry and an absolute right to interview an
older person. I think
that is all I wanted to say in this debate, but I hope that the
Minister will allow me to intervene if anything else strikes me when he
replies.
| 
