Commissioner for Older People (Wales) Bill [HL]

I propose to speak to Amendments Nos. 23, 47 and 85, and then turn to Amendment No. 24. The effect of Amendment No. 23 would be to allow for the commissioner to be given in regulations a free-standing power to enforce any recommendations he might choose to make in connection with his general functions. Compliance with these recommendations would then be obligatory under the terms of this amendment. Amendment No. 47 seeks to provide the commissioner with the power to review and monitor arrangements for the implementation of recommendations made by the commissioner regarding arrangements for advocacy, whistle-blowing and complaints. If a review of arrangements were to reveal problems, the commissioner could use his existing power to draw these to the attention of the bodies concerned and to revisit these arrangements at a later date to determine whether any improvements had been made. Where the body falls within Schedule 2, the commissioner also has wide powers to review the discharge of that body’s functions, including any failure to discharge a function. Amendment No. 85 would widen the purposes for which the commissioner could be given the power to compel others to provide him with information, an explanation or assistance. This amendment would add to the existing purposes that of determining what action should be taken, and by whom, where a recommendation made by the commissioner has not been acted upon. The Government share the view of the Assembly that it is not appropriate for a commissioner to have the type of enforcement powers intended by these amendments. It is not intended that the commissioner should be a quasi-judicial enforcement body. This Bill follows the model of other commissioners and acknowledges that there are already in existence regulatory bodies, such as the Care Standards Inspectorate for Wales, which are empowered to enforce statutory standards and regulations. The Government align themselves with the Assembly on this matter. It is necessary to make a distinction between recommendations, compliance with which may be monitored, and a power to set down requirements that may be enforced. The Assembly will be able to introduce regulations that may make provision for the making by the commissioner of reports following the discharge of his functions, and about the making of recommendations. As with all other commissioner and ombudsman legislation, compliance with recommendations is not obligatory. However, the regulations may make provision giving the commissioner the ability to take further action following the preparation of a report. This would include, for example, the provision of further information about measures taken in response to recommendations and the publication of responses. The relevant provisions are in Clauses 14 and 9. Clause 14 of the Bill provides for the making of regulations that may specify the contents of a report, the persons to whom copies of such a report must be sent and any further action that the commissioner is required or permitted to take after making a report. Under Clause 9(5), regulations may also give the commissioner the power to require information, explanations or assistance from others for the purpose of determining whether a recommendation made in a report following an examination has been complied with. The commissioner will not be responsible for determination in any matter, but will instead have the expertise to make recommendations that are about ensuring the existing framework and systems take account of, and are accessible to, older people. In this way, standards will be raised without creating duplication. Finally, Amendment No. 24, which stands in the names of the noble Lords, Lord Roberts of Conwy and Lord Luke, seeks to provide the commissioner with the power to encourage public bodies to take into account the United Nations Principles for Older Persons, which were adopted by the General Assembly of the United Nations in December 1991. As drafted, the Bill already provides the commissioner with the power to do this. The commissioner will have a number of general functions, including that of promoting awareness of the interests of older people in Wales. Using this power, the commissioner may seek to encourage greater awareness and regard for the UN principles. Indeed, as I have said, Clause 18 places a duty on the commissioner so that, in considering what constitutes the interests of older people in Wales, he must have regard to the UN principles. Noble Lords asked a number of questions that I will attempt to answer. If my comments are not clear or full enough, I undertake to write to noble Lords before the next Committee sitting. The noble Lord, Lord Roberts of Conwy, asked about the UN principles. The Explanatory Notes state accurately that the Bill is compatible with the European Convention on Human Rights, but the noble Lord wondered whether, to ensure protection, they should not be on the face of the Bill. The Bill requires the commissioner to have regard to the UN principles. He is consequently required to promote the human rights agenda as part of that process. There is no intention to give the commissioner a direct role in enforcing human rights conventions. In our view, this would be an inappropriate new power out of keeping with his existing role. In the UK, the human rights convention has been enforced through the Human Rights Act, and the Commission for Equality and Human Rights, when it is established, will take the lead in enforcement of human rights legislation. We do not believe that this is an appropriate role for the commissioner. The noble Lord, Lord Roberts, also asked what the commissioner could do to prevent, or act in, cases of extreme cruelty or abuse and whether he needed enforcement powers to do this. We feel that the commissioner may have a role in reviewing and monitoring the arrangements that a local authority has made for complaints procedures—for example, the commissioner will be able to consider whether they reflect UN principles such as independence, partition, care, self-fulfilment and dignity—but he will not be an enforcement agent. The noble Lord, Lord Rowlands, in an interesting speech—which I will wish, as will officials, to read carefully before next week—asked what the commissioner could do to help an elderly person who was in severe ill-health and received poor service from his trust. In a number of cases, of course, there would be a financial implication, and we do not intend that the commissioner should be a quasi-judicial enforcement body. The commissioner’s powers in the Bill are in keeping with the framework of enforcement powers that already exist between other commissioners, ombudsmen and the courts. The commissioner will not be responsible for determination in any matter. Instead, he will have the expertise to make recommendations that ensure that the existing frameworks and systems appropriately take account of, and are accessible to, older people. In that way, we strongly believe that we will raise standards without creating duplication with other bodies. On the question of enforcement, the commissioner cannot enforce his recommendations; he cannot require that they are acted upon. He will have the ability to undertake a general view of whether best practice guidance was being implemented, using his powers in Clause 3 to review the discharge of functions of the Assembly and of any Schedule 2 body. If the commissioner found that the relevant guidance was not being adhered to he could include that matter in a report following the review. More widely, the commissioner will also be able to draw attention to non-compliance with best practice through the making and publication of reports. The noble Lord, Lord Livsey, made the interesting point that the commissioner must have regard for the UN principles and should encourage other public bodies to do the same. The commissioner can promote the Clause 2 interests of older people and can, by promoting Clause 2, encourage that. My noble friend Lord Prys-Davies asked what would happen if a public body failed to heed a recommendation of the commissioner. What sort of appeal recommendations are there? The commissioner could assess the measures taken by a body in response to a recommendation to see whether it has been complied with. Regulations may also set out a procedure to be followed where an inadequate response is provided to a recommendation, such as publication of this failure. Where the commissioner makes a recommendation in a report following the examination of a case, Clause 9(5) specifically provides that regulations may also give the commissioner the power to require information, explanations or assistance from others for the purpose of determining whether a recommendation made in the report following the examination has been complied with. Finally, the noble Lord, Lord Roberts of Conwy, said—and I am paraphrasing—that the commissioner will have no teeth and lacks any real power to make a difference to the lives of older people in Wales. It is not our intention—and it never has been—that the commissioner should be, as I said before, a quasi-judicial enforcement body. The powers are in keeping with the powers that other commissioners, ombudsmen and courts have, and that is it.