Commissioner for Older People (Wales) Bill [HL]

I shall respond first to Amendments Nos. 87 and 88 in the name of my noble friend Lord Prys-Davies, before turning to Amendment No. 86 which stands in the names of the noble Lords, Lord Livsey of Talgarth and Lord Roberts of Llandudno. The difficulty with Amendment No. 87 is that Clause 11 allows the commissioner to issue best practice guidance to the Assembly. It would therefore seem rather strange for the Assembly to have to approve guidance that was issued to itself. As currently drafted, the Bill allows for the commissioner to consult the Assembly if he considers it appropriate to do so. That would allow the Assembly to have any input into the guidance that it felt necessary and also to pick up on any points raised and to issue statutory guidance of its own if required. I hope that that assures my noble friend that the Bill provides for the commissioner’s guidance to be of an appropriate status, but without compromising his independence. I also thank my noble friend for clarifying the intention behind Amendment No. 88. The Equality Bill, which Members of the Committee will be aware is also going through the House, provides that any code of practice issued by the Commission for Equality and Human Rights—CEHR—shall be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant. However, we must remember that unlike the Commissioner for Older People, the CEHR will be responsible for ensuring compliance with equality and human rights legislation known in the Bill as the equality enactments. Given that the Commissioner for Older People does not have an equivalent role in enforcing legislation, I think it would be irregular and inappropriate for best practice guidance to be made a judicial consideration in the way suggested. I turn, finally, to Amendment No. 86, in the names of the noble Lords, Lord Livsey of Talgarth and Lord Roberts of Llandudno. Again this seeks to extend the commissioner’s power and influence over non-devolved matters. We do not agree that the commissioner should issue guidance on best practice directly to the UK Government. The proper constitutional route for guidance, as for representations, must be via the Assembly, if it is to comply with the terms of the devolution settlement. My noble friend Lord Prys-Davies asked what weight the commissioner’s guidance will carry. It will not be statutory, but the fact that it will be issued by the office of the commissioner will bring with it the authority and expertise of that office in terms of best practice in the interests of older people in Wales. Such guidance will be used by agencies such as the Care Standards Inspectorate for Wales in judging whether care is being arranged and delivered in accordance with best practice. It can be taken into account by courts and tribunals where it is relevant to a case, with due weight being given to the commissioner’s independence and authority. The commissioner himself will be able to assess how public bodies discharge their functions in the interests of older people and how they establish and operate their arrangements against the standards of best practice set out in guidance. In the light of what I have said, I hope that noble Lords will feel able to withdraw their amendments.