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Lord Roberts of Conwy: 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.
Lord Roberts of Llandudno: My Lords, I am grateful to the Minister for his answer and for the two
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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.
Amendment, by leave, withdrawn.
Lord Evans of Temple Guiting moved Amendments Nos. 4 and 5:
On Question, amendments agreed to.
7 pm
Lord Roberts of Conwy moved Amendment No. 6:
The noble Lord said: 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,
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.
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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.
Lord Thomas of Gresford: 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.
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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 22 April 2004 and was asked how he was dealing with non-devolved matters. He was asked what his powers were over judicial processes and whether he was able to intervene or report on these issues. He said that he could make representations to the Assembly and that he had approached the Minister for Health and Social Services on two non-devolved matters, the functioning of the Criminal Records Bureau and CAFCASS. He said that he had found,
"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?
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