Commissioner for Older People (Wales) Bill [HL]

My Lords, this Bill prompted me to reflect on more than 30 years of constituency experience and how the issues of the elderly were represented to us as Members of Parliament. Generally speaking—I hope   that this does not sound complacent—in the constituency that I represented, I found that the voice and interests of the elderly were very powerfully represented in many cases through a wonderful variety of organisations and agencies that have worked with older people. I am thinking not only of Age Concern and Help   the Aged, but also of the national Pensioners Movement, a powerful organisation capable of mobilising considerable support for its various causes. In no way should we consider this Bill as a measure which reflects badly on those agencies and organisations that carry out such a powerful job in representing the interests and wishes of older folk in our communities. I wondered why we would need a commissioner, but during the course of the debate the Minister has made a good case for the importance of the post. But what has convinced me to support the Bill is that the organisations I so admire because they represent and reflect the wishes of elderly people are fully in support of it. If that is what the consultation process has shown, I, too, can give the Bill my support. By the end of his speech I remain uncertain whether the noble Lord, Lord Roberts, is in favour of it, but no doubt we will learn more in the course of our further debates. Rather than dwell on the issues raised by the noble Lord, Lord Roberts of Llandudno, on the Liberal Democrat Front Bench, on the context of the Bill, I want to ask a few questions about certain issues in the Bill that are not yet quite clear. First I turn to a point made by other noble Lords and referred to briefly by my noble friend on the Front Bench when he said that amendments are to be brought forward to this effect. How far does the commissioner’s writ run? I do not refer to the issues covered by the devolved government, but to the non-devolved areas of responsibility. Clause 2(3) empowers the commissioner to consider and make representations about any matters relating to the interests of older people. That is a pretty sweeping and general brief which presumably goes beyond the scope of the powers that have been devolved to the Assembly; that is, the commissioner can rove beyond those areas. But if he does so, what will it mean? For example—and here I agree with the noble Lord, Lord Roberts—will the commissioner have the responsibility to consider or make representations on issues such as pensions, welfare, war pensions and the entire world of benefits? If he or she does, what will be his or her power in this respect? Will he be able to draw attention to these issues? Will the writ run in any effective way beyond the areas of devolved government? If so, that is a serious issue because these are UK Government matters covered by UK departments following UK policy as laid down at Westminster. Although the commissioner might offer a commentary on those policies, surely difficulties could arise if a commissioner entirely funded by the Assembly were to have some kind of extra-judicial or extra-territorial power over government departments which are accountable to the UK Government and Parliament. This point raises quite serious issues regarding areas of responsibility and accountability. Secondly, I turn to the question of the power to examine cases. I want to reinforce the question put by the noble Lord, Lord Roberts: that of the relationship between this commissioner and the recently established ombudsman. For example, if the commissioner considers a case where an elderly person has been ill treated or has suffered as the result of an act of maladministration, who would pursue it? After the previous Bill we passed, I would assume that it would be a matter for the public ombudsman and not necessarily one for the commissioner. How is this to be defined? I gather from an observation made by my noble friend that the point is to be further delineated. Equally, I refer to the equality and human rights commission, a United Kingdom body, which will have the power to deal with issues of age discrimination. The relevant Bill is about to come before the House. Again, how will that relationship work? Thirdly, I turn to the appointment of the commissioner, a matter left entirely to regulation. While I support strongly the structure and framework of this Bill, and while it may seem that I am seeking the best of both worlds, I question leaving the appointment of the commissioner entirely to Assembly regulation. I do so for only one reason. The commissioner will have the right to scrutinise the National Assembly for Wales itself. If the Assembly is to conduct the process of appointment and ultimately make it, how can we ensure that that process will be safeguarded and consistent with the idea of the absolute independence of the commissioner? We   had interesting debates on this point on the establishment of the public ombudsman, and the question arises again in the context of the Bill. I hope that during our deliberations on the Bill both in this House and in the other place, we will be given some idea of the Assembly’s thinking on this issue and perhaps receive an assurance on the independence not only of the process of appointment, but also on the commissioner’s subsequent position. That is well worth considering. Clause 14 provides the power for the commissioner to report and make recommendations. Will he also have the power to recommend a remedy in a case of the ill-treatment of an elderly person? If so, what kind of remedy is envisaged and what power will the commissioner have in responding to such a case? Again, the issue of overlap with the ombudsman and others arises here. These questions tumble from the Bill for one simple and basic reason. It is rather different from the Bill to establish the Children’s Commissioner for Wales and I welcome it for that reason. In this respect I do not agree with the noble Lord, Lord Roberts. The Bill for the commissioner for children provided much greater detail on the functions and role of the post, but the Bill before us is much more a piece of framework legislation. Here we are maximising the right of the Assembly to make regulations and to fill out the Bill in ways that previous legislation did not. Does this Bill foreshadow the kind of legislation we are likely to see as a part of the further development of the devolution settlement? I say that because one of the   fundamental recommendations of the Richard commission, set out in chapter 13 of his report, suggested that the United Kingdom Government and Parliament should draft Bills in a framework way so as to allow the maximum degree of legislative competence to be bestowed on the Assembly. I should declare an interest as a member of that commission and a passionate support of chapter 13. I believe that it is one of the most sensible ways of further developing the legislative process of the devolution settlement. Given that, I shall forgo the kind of detailed arguments we would normally have about what should be set out in the Bill if I can be assured that it does foreshadow the kind of framework legislation we are going to see. If that is the case, I shall certainly give it my fullest support. As I have said, I am a passionate supporter of that process. I believe that we will create a more effective and developing legislative partnership between both Houses in this Parliament and the Assembly. We would have a democratic legislative trinity: the Commons, the Lords and the Assembly. We will also be able to utilise and develop the scrutiny skills of Members of the other place and of this House, as well as the scrutiny skills that are developing, as the noble Lord, Lord Roberts, said, in the Welsh Assembly. We can maximise the democratic resources available to us to ensure that we get the best possible legislation. If that is the case, and this is the kind of Bill that we will see in future, I shall give it my strongest support.