Commissioner for Older People (Wales) Bill [HL]

Amendments Nos. 33 and 35 concern restricting the commissioner’s Clause 3 powers to review the discharge of functions. Amendment No. 33 would call into question the commissioner’s power to review and report upon a failure by the Assembly to act, especially given Clause 3(1)(d) which explicitly allows for the review of a Schedule 2 body’s failure to act. The Government do not wish to restrict the commissioner’s power in this way. We believe that it is entirely appropriate that the commissioner is able to review the effect on older people in Wales of the discharge of functions by the Assembly. Therefore, it is also appropriate that he is able to review the effect on older people in Wales of the Assembly’s failure to carry out any of its functions. We believe that it would be proper for the commissioner to be able to review the effect on older people if the Assembly failed, for example, to bring forward legislation or to issue statutory guidance. However, the effect of Amendment No. 33 would be that the commissioner may only be able to review the effect on older people in Wales where the Assembly has actually discharged, or proposed to discharge, a function. The effect of Amendment No. 35 would be to restrict the commissioner’s ability to review the functions of independent providers. The restriction would allow the commissioner to review only those functions of an independent provider that relate to a service provided pursuant to a legal contract. It would not allow him the flexibility to review the functions of a person who may perhaps be providing services by some more informal arrangements, as the current wording allows. It is our view that the legal status of the arrangement is not the important factor, but rather that an arrangement exists and therefore that a person is exercising a function that should be reviewed. If this amendment were accepted, it would also mean that the commissioner had the burden of establishing whether a legally binding contract did or did not exist. That might involve unnecessary legal arguments about this point. I hope that, after hearing this explanation, the noble Lord will withdraw his amendment.