Commissioner for Older People (Wales) Bill [Lords]

Public Bill Committee, 27 June 2006.

Standing Committee A

Clause 5

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

Welcome to the Chair,Mr. Williams. We dealt with quite a number of important issues this morning quite expeditiously. I hope that we will continue in that vein this afternoon.

The hon. Member for Chesham and Amersham (Mrs. Gillan) was asking me about the need for timely interventions in relation to the clause. I appreciate her point about the need to act quickly where an older person may be in danger and about the role that whistleblowing arrangements will have in ensuring that such information comes to light. Indeed, that is why whistleblowing arrangements have been included in the clause.

However, the commissioner’s review function in the clause is primarily a strategic role designed to help to ensure that adequate arrangements are in place for dealing with problems when they arise. This is a broad power that will apply to many types of arrangements and in respect of a wide range of bodies. To make action under this general power subject to some sort of time scale would not be practical. There are a number of existing bodies who have the responsibility for protecting older people, such as the Care Standards Inspectorate for Wales. The role of the commissioner is not to duplicate their ability to take direct action, but to check that they are aware of instances of concern if those are brought to the commissioner’s attention and that more broadly they are fulfilling their responsibilities towards older people.

For example, if the commissioner were to become aware that arrangements for advocacy, whistleblowing or complaints in a care home were placing older people at risk we would expect him to bring that to the attention of the CSIW immediately. It would be for the CSIW to obtain the necessary information required to assess the risk and to take the necessary action to deal with any risk. I hope that the hon. Lady will accept those points.

Clause 7

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

May I welcome you to the Chair, Mr. Williams? I gather that it is your first time in Committee and I hope that, like your predecessor in the Chair this morning, you will have little trouble from this Committee and your chairmanship will sail by.

I rise briefly on this clause to ask the Minister what, if any, barriers lie to changing schedule 3. Obviously the Assembly may, by order, amend schedule 3, but is there any limit to the number of times that schedule 3 can be altered? Can it be altered as and when the Assembly believes that there needs to be an omission or a change of description? With what frequency is it envisaged that the power will be used?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

Clause 7 allows the Assembly to add to, delete from, or alter the description of persons listed in schedule 3. A person can be a body or individual. It sets out the conditions that must be met before a person can be added to the schedule, namely that the person must provide a service in Wales in an area in which the Assembly has functions. The hon. Lady asked me whether there was any limit to the number of times or circumstances in which this can be used. The answer is no. It just depends on whether a body or an individual qualifies under the criteria set. They must broadly be a public sector body with at least half of their expenditure on the discharge of functions in Wales being met directly from payments made by the Assembly.

I can envisage in the future new functions being given to the Assembly, or to a new or amalgamated body. In such circumstances the power to amend schedule 3, under clause 7, would be used. There is no limit, but those are the conditions that would have to be met in order for clause 7 to be used. I hope that the hon. Lady accepts that argument.

Clause 8

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I have a brief question about the assistance that the commissioner may give to a person making a complaint or representation. Will the Minister confirm that that would include translation facilities, signing, braille or any other method of facilitating communication that might be necessary?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

The clause enables the Assembly to make regulations that empower the commissioner to assist an older person in Wales

“in making a complaint or representation to or in respect of the Assembly”,

or,

“a person providing regulated services in Wales”,

or,

“a person mentioned in schedule 3”,

or,

“a person providing services on behalf of or under arrangements with a person mentioned in schedule 3”.

In order for that service to be delivered, there might well be occasions when the services to which the hon. Lady referred, such as braille, translation and so on, would be required. I am certain that with the Assembly’s general policy on providing assistance to those with certain disabilities, and support for language, there will be no problem with providing those services.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I have a question on the provision of those services. If we were coming to the end of the financial year, and the level of interpretation or assistance required by someone under clause 8 would be expensive, would there be any let or hindrance to the commissioner, and would it be necessary to wait until the next financial year?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

No, I am certain that the financial provisions under which the commissioner will operate will allow that facility to be made available whatever the state of the finances or the time of the financial year. I am absolutely certain that there will not be such a problem.

Clause 10

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move amendment No. 30, in page 6, line 28, leave out ‘may' and insert ‘shall'.

Hywel Williams (Plaid Cymru, Caernarfon)

With this it will be convenient to discuss the following amendments: No. 26, in page 6, line 31, leave out subsection (2).

No. 31, in page 6, line 38, leave out ‘may' and insert ‘shall'.

No. 33, in clause 15, page 9, line 4, leave out ‘may' and insert ‘shall'.

No. 28, in page 9, line 6, leave out subsection (2).

No. 34, in page 9, line 9, leave out ‘may' and insert ‘shall'.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

It gives me great pleasure to speak to the amendments. Clause 10 relates to the examination of cases. I can see from the consultation document that there were obviously concerns about that matter. I hope that I can articulate some of those and ask the Minister to make clear his position.

First, there was some concern that the commissioner would be able to demand an answer from a person. A community council was concerned that in a free country with citizen’s rights a person should not be forced to speak by legal coercion from the state. The council hoped that in instances of whistleblowing, confidentiality would be of paramount importance. Will the Minister address those concerns?

Concern was also expressed about the powers of examination. Some respondents hoped that the commissioner would be schooled in the rules of court procedure or that a clerk of the court would attend to expedite powers in connection with the examination of cases under clause 10.

When the regulations are made under clause 10, what consultation will take place? What will the Assembly do to inform itself while making those regulations? Will it consult widely on the detail of the regulations? Will it, for example, consult the Law Society? What is the position on data protection legislation and freedom of information relating to the examination of cases under clause 10? Can a person appeal against examination?

Amendments Nos. 33 and 34 refer to the report that will follow the discharge of particular functions. I should like some clarification from the Minister on what will happen when the reports have been compiled following the discharge of the functions referred to in clause 10. To whom will those reports be sent? Will they be timely? What limits will be set on the time for production of the reports, what will happen to those reports and who will respond to them, and on what time scale?

I know that the circulation of those reports is intended to include a list that was in the statement of policy intentions, but will the Minister confirm that that list will still apply when and if those organisations are required to respond to the reports?

Mark Williams (Liberal Democrat, Ceredigion)

Liberal Democrat amendment No. 26 would enable the commissioner to examine individual cases on non-devolved matters, and amendment No. 28 would allow the commissioner to make a report on a non-devolved matter. I do not wish to bore the Committee any longer, so I shall not say any more. We rehearsed the debates at length this morning, but I shall be interested to hear what the Minister has to say—again.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

Amendments Nos. 30 and 33 would place the Assembly under obligations to make regulations providing for the examination of cases by the commissioner and for the commissioner to make reports following the discharge of any of his functions. The Government do not believe that either amendment is necessary. The Assembly is committed to establishing a commissioner for older people with powers of examination and powers to make reports, and its statement of policy intentions makes clear the intended detail of the regulations on those matters. I assure hon. Members that in each case, the wording is identical to that found in the Care Standards Act 2000, which established the Children’s Commissioner for Wales. There has been no question of regulations not being made in respect of the Children’s Commissioner’s equivalent powers. I hope that the hon. Member for Chesham and Amersham is satisfied on those points.

The hon. Lady asked about the relationship with the Data Protection Act 1998 and the Freedom of Information Act 2000. The clause will disapply neither. She also asked how the Assembly will consult. They will consult widely on the regulations and the Law Society is on the consultation list. The consultation will be on the full draft regulations. On the timeliness of reports, paragraph 45 of the statement of policy intentions lists the people to whom it is intended that reports will be sent. That has not altered since lunch time. I assure the hon. Lady that paragraph 47 reflects the intention that time scales for responses will be set.

Amendments Nos. 31 and 34 would ensure that regulations made by the Assembly detail the types of case that can be examined, the circumstances in which an examination may be made and the procedure for conducting an examination, as well as the contents of a report and the persons to whom copies must be sent. Amendment No. 34 would also provide that the regulations must enable the commissioner to make a joint report with the Children’s Commissioner for Wales, make provision about the publication of a report, and specify any further action that the commissioner is required to take. Again, the amendments are unnecessary. The Assembly has made clear its intention to include such provision in the regulations—again, I draw the Committee’s attention to the statement of policy intentions. It is difficult to envisage how regulations that make provision for the examination of cases and for the making of reports by the commissioner could not include such information.

I come now to the amendments tabled by the hon. Member for Ceredigion (Mark Williams). Amendment No. 26 would enable the Assembly to make regulations enabling the commissioner to examine the case of an older person in Wales in connection with both his power to make representations to the Assembly on non-devolved matters and his power to undertake research and educational activities on non-devolved matters. Amendment No. 28 would do something similar in relation to non-devolved matters.

This morning, we debated extensively non-devolved matters, the relationship that the commissioner has in that respect, and how he would make representations on behalf of older people in Wales. I know that I have not satisfied the hon. Gentleman on those matters—I do not think that I have satisfied any Opposition Member on them—but my position has not changed since lunch time. The Government cannot accept the amendments, for the reasons that I have explained at great length. I therefore ask the hon. Lady and the hon. Gentleman to withdraw or not to press their amendments.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The Minister never seems to be able to satisfy me, so I will have to continue to be dissatisfied, but I appreciate his attempt to give answers to the questions that I posed. I was a bit premature in posing one of them, but I shall pose it again in relation to the next amendment. I beg to ask leave to withdraw the amendment.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move amendment No. 14, in clause 10, page 7, line 9, leave out subsection (7).

This is a probing amendment about the High Court powers. Omitting subsection (7) would not add to the coherence of the Bill, so I hope that the Minister’s reply will not be based solely on the amendment. It was tabled as a probing amendment, rather than as an amendment that I hope will be made to the Bill. I simply wanted to inquire what other bodies have the powers envisaged in subsection (7).

I posed my next question previously because I was reading my scribbled notes without the aid of my glasses. Will the commissioner or members of his staff involved in examining cases be schooled in the rules of court procedure, or have a clerk of the court in attendance? In addition, does the power to apply to the High Court for the power of entry add anything to the existing provisions relating to the police and magistrates? That question was posed by City and County of Swansea council and Swansea Network 50+.

In the event of hearings, does the Minister envisage a place being specified for them to take place, what would be the optimum staffing for hearings and examinations, and to what extent could those activities involve witnesses abroad?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

The hon. Lady has asked a number of questions on clause 10. First, she asked what other organisations have similar powers. In Wales, such powers certainly exist in other commissioner and ombudsman legislation, including that which established the Children’s Commissioner and the public service ombudsman, so I hope that that reassures her.

The hon. Lady also asked about the training to be given to the commissioner’s staff. Obviously, it will be for the commissioner to ensure that his or her staff have the training necessary to be involved in examination of any case. It would be helpful if the Committee understood what clause 10 is about. It will ensure that the commissioner has the right powers to obtain the evidence, to hold an inquiry, to carry out research and to ensure that he or she is fully appraised of the case that may be presented.

The hon. Lady alluded to concerns expressed by certain organisations. We envisage the power being used not against individuals who make a complaint, but against those who may be complained about. The ombudsman and the Children’s Commissioner have such powers and, as far as I am aware, no one has complained about those powers being exercised by the ombudsman or the Children’s Commissioner.

The sort of people who would be subject to the powers are likely to include those connected with the provision of regulated services to older people in Wales, such as providers or former providers of those services, their employees and perhaps voluntary workers. They are also likely to include people connected with the provision of other services to older people in Wales by bodies such as the Assembly, a schedule 2 body or any body that provides services in Wales on behalf of or under arrangement with a schedule 3 body.

The hon. Lady asked about witnesses from abroad. They could be called by service of a writ, but the commissioner would have no power to force them to attend. She also asked whether a place would be specified for hearings and about staffing. It will be for the commissioner to decide the most appropriate venue for such hearings.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am grateful to the Minister for giving way while he receives inspiration. Can he tell me whether there will be a minimum number of people present at a hearing?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

No, I cannot. It will be the appropriate number that is required.

The hon. Lady asked about the power to apply to the High Court, whether that adds to the police’s powers of entry and so on, and whether it goes further than the police powers. It will not affect the powers of the police. It is needed to ensure that the commissioner can require the information he needs to examine a case on his own behalf. I reiterate that the purpose of the clause is to ensure that the commissioner can carry out his job. There may be circumstances in which he needs powers of entry and examination. Everybody appreciates that when dealing with allegations of elder abuse, those powers are important. Some people allege that the commissioner will not have any teeth, but in that situation, he will have the teeth to carry outhis role.

Stephen Crabb (Conservative, Preseli Pembrokeshire)

Is the Minister aware of any instances when those types of powers have been exercised by the Children’s Commissioner for Wales or the public service ombudsman in Wales?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I cannot think of any off-hand, although the commissioner carried out an inquiry into the case of a drama teacher who had been accused of—well, we know the allegations—and I am assured that the powers were used in that case. It is a good example of a case in which allegations had been circulating for a long time and the Children’s Commissioner finally obtained what an awful lot of parents had been asking for: resolution and closure. It could have been done only by the Children’s Commissioner using those types of powers. With that assurance, I hope the hon. Lady will withdraw her amendment.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am grateful to the Minister for putting more flesh on the bones of the legislation, although I remain concerned about the examination of cases. The Committee knows far too little about the way in which the function will operate, however I live in hope that when the regulations are produced, there will be more details. I have tried to probe a little, but I understand that the Assembly will consider the matter in detail.

I am still worried that the legislation will set up a quasi-court of law, without the attendant safeguards and the security of knowing the set up or how the commissioner and his staff will use those powers. However, I appreciate that the Minister has made as good an effort as possible, and I beg to ask leave to withdraw the amendment.

Clause 13

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move amendment No. 8, in clause 13, page 8, line 19, leave out

‘if the older person consents'.

Hywel Williams (Plaid Cymru, Caernarfon)

With this it will be convenient to discuss amendment No. 9, in clause 13, page 8, line 21, leave out paragraph (a).

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The clause gives the commissioner or a person authorised by him the power to enter premises that are not private dwellings to interview older people with their consent and in connection with the commissioner’s powers in clauses 3 or 5 to reviewthe functions of specified people. I am using the amendments to probe and elicit some answers from the Minister.

What constitutes

“a person authorised by him”—

the commissioner—in subsection (1)? Would that person have to be a member of the commissioner’s staff, or could it be any person procured by the commissioner to take part in the exercise of entering premises and interviewing an older person? What safeguards are in place to ensure that that person has received the necessary checks to be put into that position? Would it be necessary for anybody who is authorised by the commissioner to deal with such vulnerable people to have undergone Criminal Records Bureau checks or other appropriate checks?

Could the Minister then define a private dwelling? There has been some discussion about that, but we need to avoid uncertainties. Do private dwellings include privately run care homes? If a care home was owned and operated in the private sector, could an individual’s room be deemed to be a private dwelling? I hope that the Minister will give more details on how we define a private dwelling, because the power of entry is very broad. The only building or structure that cannot be entered is a private dwelling, so we need to be certain what the exact definition is.

I would like the Minister to define “reasonable time”. Subsection (3) says:

“The powers conferred by subsection (1) are exercisable at any reasonable time.”

When we read such things in legislation we need to know what is in the Minister’s mind as to what is a reasonable time. For example, an elderly person might go to bed at 9 o’clock at night, but that would be a reasonable time for me, as someone who does not go to bed until about 1 or 2 o’clock in the morning. [Laughter.] Settle down—it is because I am working very hard on the Bill. Notwithstanding that, I would like the Minister at least to explain the term “reasonable time”.

Under subsection (1)(b), the interview with the older person may take place

“if the older person consents.”

When we talk about consent, particularly that of older people, I am concerned about how we interpret it in the case of people who might at first appear to be capable of giving consent to such an interview, but who are subsequently deemed not to be so. I am thinking of elderly people who suffer from dementia and are not capable of giving that consent—or, indeed, who withhold it—but who nonetheless appear to be quite compos mentis. The Minister will be familiar with the issue, because it covers a swathe of law in other instances, but it would be interesting to hear what is in his mind in this instance.

Subsection (2) says:

“The interview must be conducted—

(a) if the older person requires another person to be present, in that other person’s presence; and

(b) otherwise in the presence of others only to the extent that the older person and the Commissioner have consented to their being present.”

Does that mean that an interview could be conducted entirely in private? If so, that would surely defeat the purpose of the interview. Because the interview is part of a quasi-judicial process, there should be an independent advocate or witness at all times. If information is adduced from an interview of an older person conducted entirely in isolation, as a one-on-one exercise, what safeguards are in place to ensure that the individual gives their consent and is in a condition to give that information?

Can someone refuse entry for reasonable cause or refuse to be interviewed? Subsection (3) says:

“The powers conferred by subsection (1) are exercisable at any reasonable time.”

Let us suppose that someone in a home in multiple occupancy had died, or was close to death. It would seem reasonable that the person in charge of the building might refuse entry to the person authorised by the commissioner. What would happen if the individual refused entry? Would that be covered by “at any reasonable time” as a defence to refusing entry and refusing to allow a person to be interviewed?

A matter that also comes under the power of entry and of interview is that of the qualifications of the person authorised by the commissioner to carry out the interview, which are crucial when older and vulnerable people are involved. I want to know what qualifications will be held by someone carrying out that function. A great deal of trust will be put in the individual concerned because he or she will have what appears to be an absolute right of entry and an absolute right to interview an older person.

I think that is all I wanted to say in this debate, but I hope that the Minister will allow me to intervene if anything else strikes me when he replies.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

The hon. Lady asked me several questions. At the outset, I should say that subsection (1)(b) enables a commissioner to interview an older person but only on condition that the older person consents to the interview taking place. The Committee should appreciate that it is up to the individual older person to decide whether they want to be interviewed by the commissioner or a member of his staff. The hon. Lady asked who is

“a person authorised by him”

and if they would have been subject to CRB bureau checks.

The hon. Lady also asked about the qualifications of those who will carry out the interviews. It will be an important part of a job specification for members of staff who carry out the role that they are experienced in dealing with older people and able to conduct interviews and elicit information in a sympathetic way, especially as the older person will have made a complaint or expressed concern.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

What sort of qualifications does the Minister envisage the individual having?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I imagine that they would be experienced in social work and in dealing with elderly people. I am not saying that they should have a particular degree, but they should have experience in dealing with older people perhaps in a social services framework. They may well be solicitors with a legal qualification who can take evidence from individuals.

I am not setting out a series of qualifications, but obviously the commissioner must be mindful that the interviews have to be conducted sensitively to elicit information.

David Davies (Conservative, Monmouth)

To prevent a re-run of the controversy when the deputy Children’s Commissioner was appointed, does the Minister agree that it would be desirable if the commissioner for older people was not a member of the Labour party?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

That has altered the tone of the debate. The deputy commissioner has an extremely long history of dealing with children and their care issues. She was eminently qualified for that job, and remains so. She obtained it on the basis of her qualifications and experience, not her membership of any political party. I am certain that a deputy for the Commissioner for Older People will be appointed purely on their experience and qualifications, not on their membership of any political party.

The hon. Lady asked what was a private dwelling—an important issue because the Bill refers to it. A private dwelling is a person’s own home. That includes where a person holds a tenancy agreement. It also includes a family home where an older person is accommodated with his or her relations. However, “private dwelling” would not in our view include the communal areas of a care establishment, and the commissioner will therefore have the power to enter such establishments under the Bill’s provisions.

Any unwanted intrusion into a person’s home would be likely to constitute a disproportionate interference with an individual’s right to privacy and a breach of article 8 of the European convention on human rights.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Will the Minister confirm that someone’s own room within a care home setting would not be capable of attracting the powers of entry under clause 13, so they will apply to the common parts of that home but not the individuals’ rooms themselves?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I refer to what I said at the beginning. Subsection (1)(b) enables a commissioner to interview another person but only on the condition that the older person consents to the interview taking place. If the older person who has made a complaint or is part of a case wants to be interviewed by the commissioner and is resident in a care home, the managers and owners of that care home cannot prevent the commissioner from coming in to see and talk to that individual, as long as the individual wants to talk to the commissioner or a member of his staff. I hope that the hon. Lady accepts that, if we did not have that power, it is distinctly possible that an individual who had made a perfectly legitimate complaint about the standard of care in a particular home would not be able to speak to the commissioner because he would not have the power of entry into that home to speak to the individual.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

It is an extremely complex situation, because a complaint may be made by an individual in a care home setting who presents as though they are capable of making a complaint and consenting to be interviewed, but in fact they are not, which would be known to the people running the care home. The interviewer from the commissioner turns up, comes into the general part of the care home, but then the alleged consent, which could not have been given in the first place, may be withdrawn or may continue to be given even though that person is not capable of giving the evidence. A fairly complex situation could be emerging on the ground with regard to the interviewing process, the disruption to the home, the individual being there, and so on.

Will the Minister confirm that a private room within a care home cannot be entered?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I come back to what I said earlier.

Madeleine Moon (Labour, Bridgend)

Perhaps I can add some clarification. What has been asked is no more than any inspector would do in a care home on any day on which they were visiting. Any inspector has a right of entry into a care home at any time, day or night. They certainly would not wish to intrude on someone who did not wish to be interviewed, and that would be equally true for a service user who was asleep or who did not want to talk.

In terms of capacity, we are moving into extremely difficult areas. Most people are deemed to have the capacity to speak for themselves if they are making allegations. Allegations would always need to be substantiated. It would be extremely rare for an inspector, or, I assume, the commissioner, to take a statement from an individual without being able to substantiate it by looking at records, interviewing other service users or interviewing members of staff.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I am grateful for that informative intervention based on my hon. Friend’s long experience in the Care Standards Inspectorate. May I help the hon. Lady again? I will add to what my hon. Friend said. The hon. Member for Chesham and Amersham specifically asked whether a commissioner would be able to go into a person’s own room in a care home. He would be able to enter the care home, but he could enter the individual’s room only at their invitation. I come back to the point I made before about subsection (1)(b), which enables the commissioner to interview an older person but only on condition that the older person consents to the interview taking place. I hope that the hon. Lady is now satisfied on that point.

My hon. Friend the Member for Bridgend(Mrs. Moon) and the hon. Lady referred to the capacity issue, which is important. In circumstances where it is determined that an older person lacks capacity to make decisions, this will mean that they lack capacity to give consent to the specific request for an interview. It is not appropriate to give the commissioner a general power to interview the older person in those circumstances. Where a person lacks capacity to make decisions, there may be exceptional circumstances where it is considered appropriate for them to be interviewed by the commissioner.

In practice, this is an issue that the commissioner will need to handle sensitively—as my hon. Friend said, inspections of care homes are taking place regularly—in light of individual circumstances and legal and medical advice, including the application of the key principles and best interests checklist in the Mental Capacity Act 2005. More broadly, the commissioner may want to draw up a good practice protocol on requesting consent which he and his staff follow when they deal with individuals who lack capacity.

The hon. Lady also asked what the commissioner can do to enforce his powers of entry. In fact there is no enforcement power that will enable the commissioner to gain entry. However, if he were concerned about an older person and was refused entry he could alert the Care Standards Inspectorate for Wales, the police or social services as appropriate so that further action could be taken.

Glenda Jackson (Labour, Hampstead and Highgate)

I take my hon. Friend back to the definition of what constitutes a private dwelling. Mention of elder abuse was made earlier. No one in the Committee is labouring under the delusion that such abuse occurs only in private nursing homes. It can happen in the family as much as in any other situation. If the commissioner has no right to enter a private dwelling, what will happen if someone lays concerns before him and he, having examined them, thinks that there is a reasonable case to presuppose that a family is abusing an elderly person? Who then would be empowered to carry forward that investigation if the commissioner is not allowed to go into that private dwelling?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I am grateful to my hon. Friend for that important point. If the commissioner were alerted by a neighbour, a relative or another person that something might be happening in a private dwelling, his or her response would be immediately to contact the police or social services, who have power of entry, to examine and check whether the allegations put to him were accurate and therefore immediately protect the elderly person who might be suffering abuse. I assure my hon. Friend that the role that the commissioner would play as the one-stop shop to which the hon. Member for Carmarthen, East and Dinefwr (Adam Price) referred means that he would then refer the case immediately to the appropriate agency. In this case that is likely to be the police and the local social services.

The hon. Member for Chesham and Amersham asked about qualifications for interviews, which will be an important part of the job specification. She also asked about reasonable time, which is an important point, particularly when one is dealing with elderly people. Obviously, the reason for the visit and the person being visited would have to be taken into account. For example, they may be out during the day for day care. If it would be more appropriate for the interview to take place in their own home, it may have to be in the evening. If the interview is to take place in a care home, arrangements can be made to ensure that it fits into the pattern of care in the home.

I appreciate the point that the hon. Lady makes. Elderly people may want to have a nap during the afternoon, for example, and an interview would not be appropriate at that time, but I am sure that interviews would not take place at 1 or 2 o’clock in the morning—although I know that the hon. Lady would be awake at that time.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

May I just take the Minister back to the person authorised by the commissioner? He did not entirely satisfy me on one point. Is it envisaged that the interviewer will be a member of the commissioner’s staff, or could it be someone who is not employed by the commission and therefore acting as an agent, in which case would criteria be laid down to ensure that they carry clear identification? It seems clear from the legislation that interviewers are not restricted to staff of the commissioner’s office, and that there will be occasions when others would be used to carry out interviews.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

In the fullness of time, that may wellbe the situation. As more cases come to the commissioner’s attention and he needs to act expeditiously, a senior social worker may be required to act on his behalf. Clearly, they would have to satisfy his rigorous qualification that they were a suitable person to carry out this type of interview. Again, I hope that my comments have satisfied the hon. Lady and that she is now prepared to withdraw the amendment.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to ask leave to withdraw the amendment.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move amendment No. 10, in clause 13, page 8, line 25, at end add—

‘(4) The powers conferred by subsection (1) are exercisable in Wales only.'.

This is a very simple amendment. It is about where the powers can be operated. Could they be exercised in England?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

No.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

That is good clarification. I beg to ask leave to withdraw the amendment.

Clause 17

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Just briefly, could the Minister enlighten me as to whether collaborative working will include working with the national partnership forum for older people, the Commission for Equality and Human Rights or organisations such as the university of the third age?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

The collaborative working would not be broad enough to include the national forum. It would be for the commissioner to work eitherwith other commissioners, such as the Children’s Commissioners for Wales, or with the ombudsman, but certainly not with the university of the third age, for example. Collaborative working would take place with public office holders, such as other properly constituted ombudsmen or commissioners, not a wide range of organisations, such as representative organisations, because there are formal arrangements. I hope that that answers the hon. Lady’s question.

When the Commission for Equality and Human Rights is fully set up, it is likely that the commissioner will enter into an arrangement with it under subsection (8), which would formally establish their working arrangements. The CEHR will have a role on age discrimination, particularly in employment, so it is right that the Commissioner for Older People in Wales should have a proper working arrangement with it. I hope that the hon. Lady is satisfied with that point.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I most grateful to the Minister—that is what I wanted to hear.

Adam Price (Plaid Cymru, Carmarthen East and Dinefwr)

If I may briefly raise an issue that does not concern collaboration, there are other ombudsmen and regulators who are themselves subject to regulation. Will it be possible for someone to bring a complaint about the Commissioner for Older People, for instance to the parliamentary ombudsman or another regulator? Who regulates the regulator?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

The commissioner will have to have his own complaints procedure. If someone remained dissatisfied with the way the commissioner had carried out his functions, that complaint could be taken to the Assembly for consideration. It is important that the commissioner should be required to develop a complaints procedure. The other way would be through judicial review, to which the commissioner could be subject if someone was dissatisfied with the way he had carried out his functions.

Clause 24

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move amendment No. 1, in clause 24, page 14, line 17, leave out ‘60' and insert ‘50'.

Hywel Williams (Plaid Cymru, Caernarfon)

With this it will be convenient to discuss amendment No. 37, in clause 24, page 14, line 17, at end insert

‘but, at the Commissioner's discretion, “older person” may also be interpreted to mean a person aged 50 or over where that person suffers from an age-related illness, impairment or disability or where the Commissioner considers it appropriate to do so.'.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The purpose of this simple amendment is to probe the Government’s arrival at the magic age of 60 as the definition of an older person. I know many people who are 60 and over who would perhaps resent being described as an older person. Indeed, if one is four, a seven-year-old is an older person. Some explanation behind the thinking here would be appreciated because during the enormous consultation process there was a variety of opinions as to the age at which these provisions should bite.

Some people were of the opinion that because the strategy for older people in Wales focuses on those who are 50 and over, it should perhaps be even as young as 50. Certainly it was suggested by some of the respondents that if older people were defined as 50-plus, it would at least give the commissioner some locus, prior to the 60th birthday, in an area where individuals of that age may need some help. Some argued that because health policy considers an older person to be aged 65 and over, that should have been the age.

Indeed, it was considered that if the age of retirement is to increase, as I believe it will, that should perhaps be the age at which the provisions kick in. It would be a moving age but it would be in line with the view that someone who is no longer in the world of work and who has retired is perhaps more in need of the services that are provided.

I have read most of the arguments that have been put forward and I am certainly not at odds with 60 being the age, but it would be interesting to know why the Minister arrived at that particular age, rather than taking a slightly more inappropriate younger age, or a more appropriate older age, as people are now living longer, showing great signs of activity and working sometimes well into their 70s and 80s.

Adam Price (Plaid Cymru, Carmarthen East and Dinefwr)

I rise to speak to amendment No. 37, which proposes a degree of flexibility—one of the arguments that a number of consultees advanced in relation to the definition of an older person. It is a subjective thing, clearly. Victor Hugo said that 40 is the old age of youth and 50 is the youth of old age, but I am a little close to both. The serious point, as has been touched on by the hon. Member for Chesham and Amersham, is that we are in danger of creating a profusion of different definitions of “older person”, much as at the opposite end of the age scale, we have had an issue for several years about the different rights given to young people at 16, 17, 18, 21 and so on.

Certainly there would seem to be an advantage from a public policy perspective in having a degree of consistency when it comes to a definition of what constitutes an older person for these purposes. As has been said, we have in Wales the strategy for older people, and now we have in England the sister strategy of opportunity age, both of which take 50 as their starting point, because that, they believe, is the point at which people begin to experience age-related problems, in terms of the delivery of services and the context of their own lives. There is therefore a problem of mismatch, because we have a strategy that is seeking to enhance and improve the provision of services for older people in Wales, yet the Commissioner for Older People will be dealing only with people aged 60 and over. All that my amendment—I was tempted to say “our amendment”, but obviously you are in the Chair, Mr. Williams—seeks to do is to offer that flexibility.

The Government have argued that we have to draw a line somewhere and that there is no perfect answer. They argue that it would be better to veer towards 60 rather than 50. That is because at 50, we would be including one third of the population and growing, as the demographic bubble changes day by day. There is some strength to that argument. However, as many of the consultees suggested, why not give a general rule of 60 to the commissioner but offer him the flexibility to look at cases that involve people who are 50-plus and who have a problem that is clearly age-related, particularly in the employment sphere? It could be argued that the Commission for Equality and human rights will cover that. However, there is also the matter of Alzheimer’s and other dementia-related illnesses that begin to kick in, unfortunately, at 50-plus. There is a strong argument that the commissioner could perform an important function in looking at people between the ages of 50 and 60 who receive regulated services and suffer an age-related impairment. Yet in the current framework of provision, the commissioner would not be able to do that.

We touched earlier on the fact that the way that we ended up deciding on 60 was strange. In the other place, Lord Evans was quite courageously trying to justify it with reference to all manner of things. At age 60, winter fuel payment and pension credit benefits kick in, as well as the Assembly’s free swimming and bus pass schemes. One could almost justify the choice of any age; for example, there is probably a good argument for choosing 57 lurking somewhere.

One of the consultations by the Assembly advisory group offered three options: 65, 50-plus and 65 with flexibility. The age limit of 60 was never offered in the consultation but that is the one that we ended up with. The most popular option, with 139 respondents behind it, was 65, but with the flexibility that I referred to.

I know that the Government have addressed the matter in the other place, in Grand Committee, and on Second Reading. There is a strong argument for giving the commissioner the opportunity to look at age-related public policy matters and problems as people get closer to the Government’s chosen definition of 60.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

That was an issue that we addressed on Second Reading as well as in the other place, to which the hon. Member for Carmarthen, East and Dinefwr has referred extensively. Both the hon. Member for Chesham and Amersham and the hon. Gentleman are right in saying that a line has to be drawn somewhere. The difficulty is in getting that right and having sufficient flexibility to address some of the concerns that the hon. Gentleman has raised.

One issue, apart from getting the age right, is making sure that the commissioner is capable of dealing with the issues that will be brought to him. Setting the age threshold at 50, as the hon. Lady has suggested, would provide the commissioner with too broad a remit, one that would cover more than a third of the population of Wales. There are approximately 600,000 people over the age of 60 in Wales, but if the age were to be dropped to 50, the commissioner’s remit would extend to incorporate more than 1 million people, or an extra 400,000. If we want an effective champion for older people, as I am sure we all do, we must draw a line somewhere. We believe that 60 is a sensible and pragmatic choice. Despite the fact that nobody suggested 60 in certain consultations, we might have drawn the line about right by taking into account all the different proposals.

For those concerned that an age limit of 60 will fail to catch those people experiencing discrimination in employment, as the hon. Member for Carmarthen, East and Dinefwr said, the CEHR’s new age equality regulations, which will come into force this October, will make it unlawful to discriminate in employment on grounds of age and vocational training. It will be the role of the CEHR, which will have appointed a chair and a board by autumn, to enforce that legislation.

The role of the Commissioner for Older People will be different from that of the CEHR. It will be primarily to act for the protection of those who receive or are in need of services as older people in Wales. Of course the commissioner will want to work with the new CEHR on matters affecting older people which are of interest to them both. I envisage that the working relationship will be underpinned at a practical level by a memorandum of understanding or protocol setting out their respective roles. It could also be formalised using the provisions for joint and collaborative working that I referred to during debate on clauses 16 and 17.

Amendment No. 37 seeks to provide the commissioner with the discretion to extend his remit to include persons aged between 50 and 60 who suffer from age-related illness, impairment or disability, or if he considers it appropriate for whatever reason to do so. I understand the hon. Gentleman’s concern that the commissioner’s remit should encompass as far as possible those vulnerable people suffering from dementia or Alzheimer’s disease, for example. The Government and the Assembly considered carefully whether any flexibility in the age threshold could be applied. However, because of the need to specify any exceptions to the normal age threshold in the legislation and because of the difficulties of doing so, the single criterion of 60 was used.

The amendment seeks to specify exceptions to the age threshold of 60, but the criteria are extremely wide. In our view, the amendment would lead to uncertainty and confusion about the commissioner’s powers. The listed exceptions would require the commissioner to decide on a case-by-case basis whether someone fell within the category of persons listed or not. That task would consume a considerable amount of the commissioner’s time and require additional expertise. As for the commissioner’s residual general discretion, it could in effect lower the age threshold to 50. Such a low threshold would bring us back to the issue of the extra 400,000 people who would be eligible to make representations to him.

On balance—we must strike a balance—I believe that 60 is the clearest, most sensible and pragmatic choice. However, that does not mean that persons aged under 60 will not benefit from the appointment of a commissioner. The commissioner will have a significant strategic role, which will include reviewing the functions and arrangements of a number of public bodies and issuing guidance. Any general recommendations or guidance that the commissioner makes to improve services or arrangements will help to drive up standards for all service users, including those under 60.

The hon. Gentleman referred to the strategy for older people in Wales, which would cover people over the age of 50. Its purpose is not just the same as the commissioner’s but encapsulates the active citizenship agenda and preparing people for retirement and older age. The commissioner’s remit is quite different. That is why the strategy took a threshold of age 50. We could carry on this debate and come forward with other ages. I was not particularly happy that the hon. Gentleman suggested 57, that being my next birthday.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Has the Minister declared an interest?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

Perhaps I should.

The age of 60 is a reasonable balance. As I have indicated on the provision of services, particularly for those with a particular condition such as dementia, if there is a shortfall in the services provided to those aged 60 and above, it will also be an issue for those below 60. Sadly there are those who are now suffering from dementia below 60.

Glenda Jackson (Labour, Hampstead and Highgate)

I believe the hon. Member for Carmarthen, East and Dinefwr earlier in our debate, in one of his attempts to move the commissioner’s rights to cover non-devolved issues in Wales, said that the CAB had reported that 80 per cent. of cases presented to them had to do with the benefits and/or pensions system. I point out that the pensionable age for women in Wales, as in the rest of the United Kingdom, is 60.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

Absolutely. That is one of the justifications for choosing the age of 60. The hon. Member for Carmarthen, East and Dinefwr referred to a number of other benefits that people receive in Wales, virtually all of which start at the age of 60. As part of the main function of the commissioner is to review the services that people receive, it again seems sensible to decide that the threshold when people start receiving those benefits and services should be 60. I would ask that the hon. Lady and the hon. Gentleman withdraw their amendments.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I have listened to the Minister’s thinking. I am not sure that there is a right or wrong answer. The point made by the hon. Gentleman who speaks for Plaid Cymru, the hon. Member for Carmarthen, East and Dinefwr, is correct. We are in danger of messing up at the other end of the scale. We have so many different ages for qualifying for rights and responsibilities at the lower end—16 as the age of consent, 18 for voting—and we are starting to get that at the other end of life. We should be moving in the direction of equality in the retirement age for women and men. However, I accept the arguments. There is no wrong or right answer. I beg to ask leave to withdraw the amendment.

Clause 30

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I beg to move amendment No. 17, in clause 30, page 17, line 6, leave out subsection (2).

The amendment will remove the privilege amendment made in another place. As the Committee is aware, the standard formula is incorporated into the Bill before leaving the other place to avoid the formal infringement of the Commons’ financial privileges. Removing the privilege amendment and thereby reinstating the financial provisions in the Bill is a purely technical and formal process, so I hope that the Committee will accept the amendment.

New Clause 1

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move, That the clause be read a Second time.

New clause 1 is purely inspired by the so-called bonfire of the quangos, which has not escaped the notice of many people in Wales. It has caused some controversy, and in the new clause I seek to put the Assembly firmly back in the driving seat so that if at any stage it wished upon itself the demise of the commissioner’s office it would be able to effect it. It may be, for example, that the Government in their wisdom want to appoint a commissioner for England and Wales jointly because it has proved such an excellent idea in Wales. In that case, the Bill would need to be removed from the statute book and a new Bill perhaps introduced. Or the Auditor General, using his powers under paragraph 13 of schedule 1, might carry out an examination and report that resources have not been used efficiently or effectively. The new clause would give the Assembly a sanction against the organisation in that eventuality.

The new clause would put the Assembly back in control. I do not mind if the Minister thinks it is not fit for purpose and wishes to table his own amendment on Report to ensure that the Assembly has the power to set light to this particular quango without too much controversy if it so wishes.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

While I appreciate the point that the hon. Lady has made, the effect of the new clause is pretty draconian to say the least. It would result in the Act ceasing to have effect if the Assembly so resolved or if the Auditor General produced a report concluding that the commissioner had

“failed to use his resources efficiently or effectively.”

Should the Assembly conclude that for some reason there was no longer a need for the commissioner—the hon. Lady suggested the example of a merger and a UK-wide commissioner—it would be able to relieve the commissioner of office, simply fail to reappoint him or seek to secure the repeal of the supporting legislation. If an incumbent commissioner’s contract still had time left to run, there is a provision in paragraph 3(3) of schedule 1 for arrangements to be made for any necessary early severance payment to be made.

If the hon. Lady is concerned about financial mismanagement or misconduct by the commissioner, I tell her that the Assembly takes the view that in such circumstances it should be able to relieve him of office. As noted in its statement of policy intentions, it is intended that regulations will include the power to do so on the grounds of misbehaviour.

The second part of the new clause deals with the impact of an unfavourable audit report from the Auditor General. It seems a somewhat draconian response to provide that the Act shall automatically and immediately cease to have effect if the commissioner is judged by the Auditor General to have failed in any respect, however minor, to use his resources efficiently or effectively. There are safeguards built into the Bill to enable the Assembly to ensure that taxpayers’ money is used effectively by the commissioner. There is a requirement of audit in paragraph 12 of schedule 1 and provisions for examinations into the use of resources in paragraph 13. Before public money is committed at all, the Assembly Government will set the commissioner’s level of funding by negotiation with him on the basis of a forward work programme. The proposed allocation will be subject to the approval of the Assembly.

The Assembly Government have made clear in paragraph 69 their statement of policy intentions that they intend to require the commissioner, by regulation, to make an annual report to the Assembly giving an account of his actions in the discharge of his functions over the previous financial year and a summary of his proposed work programme for the current and next financial year. Following the custom and practice in the case of the Children’s Commissioner, the Assembly would hold a debate on the report, which would provide an opportunity to give a view on the value for money that the commissioner has given the public. That would in turn inform discussions about the appropriate level of funding for his planned future activities. I therefore ask the hon. Lady to withdraw the motion.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I have listened to the Minister, and I am sad to hear that he does not want to put the Assembly firmly in control. However, on this occasion I beg to ask leave to withdraw the motion.

New Clause 2

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move, That the clause be read a Second time.

The swansong of new clauses is a very simple one tabled to reassure several people who have made representations to me about their concern that there might be a duplication and overlap of functions, particularly with the Care Standards Inspectorate for Wales. I tabled the new clause so that the Minister could have the opportunity in Committee to set people’s minds at rest, because he too will know about those concerns. I hope that the new clause is a suitable vehicle to enable us to hear from him how the new commissioner will avoid conflict with the CSIW.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I am grateful for the opportunity to set the record straight on the concern that some individuals and organisations have had about the possible duplication of roles between the commissioner and the CSIW. However, can tell the hon. Lady that the new clause is not necessary. The remits of the commissioner and the CSIW are quite different and there is no likelihood of the two offices tripping over each in seeking to safeguard older people.

The CSIW’s main focus is on registration and inspection of the care sector in Wales. It enforces the Care Standards Act along with its associated regulations and national minimum standards in Wales. It deals with complaints that arise from the operation of those arrangements.

Broadly speaking, the commissioners remit in that area is to check that the CSIW is doing its job properly in relation to older people. He will not have statutory powers to inspect or bring civil or criminal proceeding against service providers. The commissioner’s role is more strategic. For example, the Assembly’s intention, as with the Children’s Commissioner, is that the commissioner should use his powers to focus on cases that raise a question of principle, or that have more general application or relevance to the rights or welfare of older people.

That proposed approach was set out in paragraph 33 of the statement of policy intention. Crucially, the commissioner will be required to take into account whether the issues involved in the case have been, or are being, formally considered by other persons, and if they have not, or are not, whether they are more suitable for consideration by others.

Finally, where the case is the subject of legal proceedings, clause 21 will apply to restrict the commissioner’s powers in relation to proceedings. I know that this is a probing new clause, and I hope that I have set out the different roles.

Madeleine Moon (Labour, Bridgend)

Does the Minister agree that the chances of the commissioner having a conflict of interest with the CSIW would be the equivalent of the Children’s Commissioner having a conflict of interest with the CSIW given that it has a major role to play in the regulation of children’s services? That conflict has not arisen, so it seems highly unlikely that it would arise in the case before us.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

Absolutely. My hon. Friend again makes an excellent point, based on her experience. As far as I am aware, there has not been any conflict between the Children’s Commissioner and the CSIW and I would not expect it to happen with the commissioner for older people. With those words I ask the hon. Lady to withdraw the motion.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am most grateful to the Minister. As he knows, I was reflecting representations that had been made by, for example, the city county of Swansea, where there was fear that there could be a duplication of functions. I am glad that I have been able to do them the service of not pre-judging the issue myself and uttering words of wisdom from the Opposition Benches, and allowed him to put his comments on the record. I am therefore grateful, and I beg to ask leave to withdraw the motion.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

On a point of order, Mr. Williams. Before you conclude our proceedings, I should like to thank you for your stewardship of our proceedings, and to ask that you pass on our thanks to Mrs. Dean as well. The day has been an interesting one and we have had contributions from all sides of the Committee. As is our normal custom, I also thank all the officials, Doorkeepers, police and other people who have served us so well in the past few hours. I should like to say to the hon. Member for Chesham and Amersham and to other Committee members that I think it has been useful to tease out some issues on this important legislation for Wales. Although we have not agreed on everything, we have done ourselves and the people of Wales a great service in properly scrutinising the Bill.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Further to that point of order, Mr. Williams, I associate myself entirely with the Minister’s remarks. I thank everybody who has been involved in the Committee Room in the process of scrutiny of the Bill. Sadly, following the passage of the Government of Wales Bill, this Bill will be one of the last of its nature to be scrutinised in such depth in this place. Nevertheless, I wish this piece of legislation well. When it started in the other place—more than a year ago now, in effect—there was little opposition from my side of the House, but there was a genuine desire to examine it in detail, and I think we have had ample opportunity to do that. It is rare that we manage to finish scrutinising a piece of legislation in good order and in good time, because the Government are usually quite curmudgeonly about time. The Minister’s generosity in allowing us sufficient time on this occasion and in enabling us not to have to consider the Bill on another day could not have anything to do with an election in Blaenau Gwent, could it? No, that would make me far too cynical.

I thank my hon. Friends on this side of the Committee for supporting me and I thank the hon. Members who spoke for the Liberal Democrats and for Plaid Cymru. It has been a pleasure working with both of them.

Hywel Williams (Plaid Cymru, Caernarfon)

I thank hon. Members for an interesting first experience in Standing Committee.