Examination of Witnesses (Questions 1-19)
MR DON
TOUHIG MP, MR
JOHN WILLIAMS,
MS AMANDA
JONES AND
MS ELIZABETH
LOCKWOOD
5 APRIL 2005
Q1 Chairman: Welcome, Minister, and colleagues.
Before we start, apparently there is an Election in the offing,
as I understand, and this is of course why we are not meeting
you jointly with the Assembly Committee, at least as far as this
Parliament is concerned we are not, and consequently it would
be quite useful if you could give us a brief rundown and background
to the Bill before we start the questions. Before that if you
could introduce yourself and your colleagues.
Mr Touhig: Thank you for asking
us along this morning, Chairman. I thought all those cameras and
helicopters were to watch us walking down Whitehall but there
must be somebody else coming down! On my right is John Williams,
who is the Director of Finance at the Wales Office. On my left
is Liz Lockwood, who is the policy lead in the Assembly who is
dealing with this particular draft Bill, and Amanda Jones, who
is the Assembly lawyer. We are available to answer any of the
questions that you may have for us this morning. Can I just set
the scene about what we have in mind with the Bill. Wales has
a higher concentration of older people than the rest of the United
Kingdom and the rural areas of Wales have a higher concentration
of older people than urban areas. Over the next 20 years or so
the numbers of people over 60 in Wales will increase to nearly
one-third of the population and the numbers over 85 will increase
significantly. My colleagues in the Assembly have a strategy for
older people, developed after extensive consultation, and it is
consistent with the UN Principles on Ageing. The proposal
for a Commissioner for Older People is the next logical step and
will give a firm focus on promoting the values of independence
and quality and choice in old age. 93% of people consulted in
Wales favoured the establishment of a Commissioner and 84% agreed
with the functions of the proposed office. The draft Bill establishes
a Commissioner for Older People that has the powers and duties
at least comparable to the Children's Commissioner in Wales and
the Commissioner will play an important part in tackling age discrimination,
promoting positive images of aging, and giving older people a
stronger voice in society. The Commissioner will speak up on behalf
of older people and be their champion. He or she will help ensure
that older people themselves can influence the way in which important
public services are managed and delivered in Wales to better meet
their needs. The Commissioner would also be able to assist older
people in making complaints and representations. The Assembly
will be able to refer matters to the Commissioner for consideration
but would not be able to require the Commissioner to act on any
of the referrals. The Commissioner would have a range of functions
and these include: to promote awareness of the interests of older
people in Wales; to encourage good practice in the treatment of
older people in Wales; to promote the provision of opportunities
for and the elimination of discrimination against older people
in Wales; and to keep under review the adequacy and effectiveness
of law affecting the interests of older people in Wales. The Commissioner
would be able to examine individual cases and could support individuals
in taking court action in certain circumstances. He or she may
decide to restrict this power to instances where other avenues
of redress have been exhausted and wider matters of principle
are involved, in the same way that the Children's Commissioner
does now. Other powers would include the discretion to undertake
research, to issue guidance on best practice, and to make reports
to the Assembly on the exercise of his or her functions. After
careful consideration of all of the issues and options, the draft
Bill proposes a lower age limit of 60 as within the Commissioner's
remit. We believe that this would be consistent with the age benchmarks
already in legislation and include those people who are entitled
from aged 60 to receive winter fuel and pension credit benefits,
women aged 60-plus who will continue to receive state pension
until 2013, as well as aligning with the Assembly's free swimming
and bus pass schemes which start at age 60. I believe this is
an important new draft Bill that has attracted a great deal of
support and interest in Wales from people right across the age
spectrum and I look forward to discussing it with you, receiving
your report in due course and promoting this Bill in Parliament.
Q2 Chairman: Thank you, Minister. The
aims seem wholly commendable but what, if as rumoured an Election
does go ahead today, are the plans for the Bill?
Mr Touhig: We have prepared the
draft Bill working closely with our colleagues in the Assembly
and promoting it on the assumption that there will be a full parliamentary
session. It is not possible really to make an assumption there
might be an Election and how we could time the scrutiny of it
so we have assumed that there would be a full parliamentary session.
Should an Election be called today then that will obviously interrupt
your proceedings. We have sent out over 2,000 letters of consultation
to groups all across Wales. We have set a deadline of mid-June
for their responses. So we will get their responses in. You will
continue with your scrutiny while Parliament sits and I assume
you will make arrangements post an Election, assuming the Government
is returned and the Bill is further considered as draft, to look
at how you would respond to the draft Bill. Of course, if the
Election is held now, then I cannot say what would be in the Queen's
Speech if Labour were to win the Election, but we would have more
than a year for the parliamentary session so it does extend the
timescale a little bit to enable you to consider your pre-legislative
scrutiny and for my colleagues in the Assembly if they wish to
do the same. It has always been our ambition by the autumn after
the conference season to say, "Right, here is the final Bill,"
and be able to go to my colleague, the Secretary of State, wearing
his other hat as Leader of the House and say, "We have got
a Bill for Wales and we would like it in the programme."
Q3 Chairman: One of the problems would
be of course that the Committee would not be established straight
away so we would have to take that into account as well if we
are here and you, if you are the Minister, would have to take
that into account. Has that been factored in? You quite rightly
said of course that it would be a longer parliamentary year so
that probably would help in that regard.
Mr Touhig: If I could take a stab
at this. I understand that perhaps if the Election is held and
the Government is returned and decides to press ahead with the
scrutiny of this Bill, then you would be reconstituted as a Committee
some time before Parliament rises for the summer. I do not know
whether that is a fact but that is what I am given to understand.
Then you would obviously have to take a judgment as to whether
you wanted to continue scrutiny during the recess. If not then
Parliament would return and at the moment I think the proposal
is some time in October and then hopefully you might complete
your considerations by some time in October allowing perhaps as
we have in the past for debate at the Welsh Grand if that is what
is intended and the final Bill published towards the autumn, November-ish,
thereabouts, so that if there were a slot in the legislative programme
for the incoming Government hopefully we could get that in perhaps
at the turn of the year into the new year to complete all its
stages in time for the recess next year.
Q4 Chairman: Lots of fingers to be crossed?
Mr Touhig: Lots of fingers to
be crossed.
Q5 Chairman: Also this Bill has been
produced as a draft Bill commendably early in the parliamentary
year. We have had problems in the past fitting in our pre-legislative
scrutiny. Is this the first of many being produced this early
in the year?
Mr Touhig: You may recall that
the Assembly made this one of its priority bids for legislation
to Government some while ago. I pay tribute to officials and ministers
in the Assembly because when we found we had an opportunity to
publish a draft Bill, they pulled out all the stops and worked
in an extraordinarily short period of time to fill in all the
detail, as did Parliamentary Counsel who actually drafted it.
A great deal of extra work and a great deal of oil was burnt at
midnight in order to get it to this stage which meant there was
an opportunity there and the Secretary of State was keen that
if we could get this draft Bill published in this session he wanted
to do that, and our colleagues in the Assembly wanted the same.
Chairman: Thank you. Dr Francis?
Q6 Dr Francis: Good morning. Before we
get into the detail of the draft Bill, if I could ask you some
questions about the other Bills. Can you tell us what is the likelihood
that no Welsh legislation will be passed in this session?
Mr Touhig: As you know, we published
two Bills for this session—the Ombudsman Bill and the
Transport Bill—and, as I say, we were delighted that we
had the chance to publish this Bill in draft. The Ombudsman Bill
completed all its stages in the Lords and got a second reading
in the Commons yesterday. If there is an Election I would anticipate
we might be around a little late either Wednesday night or Thursday
night where I would hope if we can get agreement from the opposition
parties that the Ombudsman Bill might be secured as part of the
wash-up process. We have certainly had informal discussions to
try to secure the support of the opposition to that effect and
it would mean taking the Bill through all its stages—committee,
report and third reading—on the floor of the House perhaps
in the middle of the night, I do not know, but we will be up for
it if we can get that Bill on the statute book before Parliament
is dissolved. The Transport Bill, on the other hand, which I know
concerned Mrs Williams last night when she spoke in the Welsh
Day Debate, has not had a chance to get a second reading. I have
indicated to the Leader of the House that if an Election is held
and the Government is returned then if he as Leader were looking
for a Bill to introduce early in the next session the Transport
Bill is ready. It has had all the pre-leg scrutiny. It is ready
to go. I have discussed it with my colleague minister in the Assembly
and he strongly supports that. Although the Assembly has issued
a new list of bids for legislation, if we could get this one running,
then it would very much depend upon Parliament and the business
managers of the Government in a new session, but the Bill is ready
to go so we would hope that that might be included early in the
Queen's Speech. Then if we could continue the pre-leg of this
one and introduce that one in the next session that would be our
hope and ambition.
Q7 Dr Francis: Would you say it is unfair
to suggest that Welsh legislation is first to be jettisoned within
any restriction of the parliamentary year then?
Mr Touhig: Yes, I pay tribute
to the Secretary of State—and I have got to be careful here
because people will say it is because he is Leader—who has
worked tremendously hard to ensure that we did get a slot for
the second reading of the Ombudsman Bill. There was a strong case
for it. It had completed all its stages in the Lords and so on.
It was very much down to his efforts in talking to other colleagues
that we have ensured that the Ombudsman Bill has had its run and
hopefully, as I say, we will complete it. No, it is not a case
of Welsh legislation being jettisoned because the value of the
pre-leg scrutiny means that a lot of the consideration and comment,
a lot of the sting in some senses in terms of argument in committee
when you take a Bill through has already been put aside, fears
assuaged, concerns set to rest by the process. I think pre-leg
has assisted us in accelerating more Welsh legislation onto the
statute book.
Dr Francis: Thank you.
Q8 Mrs Williiams: We have had a copy
of your press release concerning this draft Bill and in that press
release you stated that the Commissioner for Older People will
"champion their rights and dignity and protect them from
discrimination and prejudice". How will he or she be able
to do that in practice?
Mr Touhig: The Commissioner will
have particular functions that will empower him or her to promote
the interests of older people in Wales, tackle age discrimination,
encourage good practice and treatment of older people, and review
the adequacy and effectiveness of law affecting the interests
of older people. The points I made in my opening remarks. These
powers provide the basis of the role and remit of the Commissioner
and are exercisable only in relation to devolved matters. To prevent
duplication the Commissioner cannot discharge a function that
is also dischargeable under statute by another Commissioner or
Ombudsman. Additionally, though, the Commissioner will have the
power to make representations to the Assembly about any matter
devolved or non-devolved relating to the interests of people in
Wales. That is the situation that exists now with the Children's
Commissioner and that is a power that we would want the Commissioner
for Older People to have. In undertaking his or her functions
and considering what constitutes the interests of older people,
the Commissioner will have regard to the United Nations' Principles
for Older Persons, and I think that is important. Specifically,
the Commissioner will also have powers of assistance, examination,
review of functions and review and monitoring of arrangements
so it is fairly widespread and of course, as you appreciate, if
Parliament were to enact this, the Assembly through secondary
legislation can make certain regulations that will underpin the
effectiveness of the work of the Commissioner, so I do believe
that this is a thoroughly good opportunity to protect and defend
the rights of older people and to ensure that in old age they
have dignity and respect and they are listened to. I am President
of the National Pensioners Association in Wales and if I did not
get some of these things right I will be given GBH, I can tell
you, by the executive committee of the National Pensioners Association
for Wales whom I meet frequently.
Q9 Julie Morgan: Good morning. You say
how it will relate to the Ombudsman. This afternoon we are debating
the Equality Bill which is going to set up an Equality and Human
Rights Commission and obviously age is going to be one of the
areas that comes into that. I do not know whether this has been
thought of yet because this Bill is only having its second reading
today. How would this person relate to that Equality and Human
Rights Commission?
Mr Touhig: As I have said, the
whole of the principles underpinning the proposed draft legislation
are based on the UN Principles for Older People that were adopted
by the General Assembly, I think in 1991, and clearly there would
be a cross reference. The Commissioner will work on matters relating
to areas devolved into Wales but if there are any areas where
there should be some sort of working relationship then that will
develop. I have no doubt that should the Equality Bill, which
will get a second reading today, progress anywhere after then
this matter will obviously form part of any discussions. The interesting
and important thing about our pre-leg is that if it does throw
up something like this issue you could perhaps take part in the
debate today and say, hang on, that could affect the draft Bill
for the Older People's Commissioner for Wales and that again will
inform any decision that we might make on the final Bill.
Q10 Julie Morgan: That was one of the
issues I was hoping to raise in the debate today and obviously
at a very early stage because in this Bill the Commissioner will
promote awareness of the interests of older people in Wales and
I think one of the key things about the Commission will be to
promote the rights of older people. There is a crossover in the
functions of the two bodies so I think it is important that we
do try to decide how they relate to each other at an early stage.
Mr Touhig: I do not know whether
you want to say anything?
Ms Lockwood: Yes, I think just
to confirm that we have thought about that and indeed we have
had membership from Wales on the task force that has drawn up
the proposals in the first place. I am sure you are aware of that.
We do feel, however, that the remit of the CEHR is likely to focus
on employment rights to do with age and that therefore that would
exclude probably a high proportion of older people in Wales because
they are not really part of the workforce at the moment, they
are older than that.
Mr Touhig: I hope that is helpful
to give you a feel.
Q11 Julie Morgan: Those are your first
feelings about it. Thank you. The questions I was going to ask
were about the non-devolved issues and they are the same sort
of questions we asked about the Children's Commissioner and a
lot of the debate about the Children Bill did centre on how it
was going to operate in relation to the non-devolved matters so
this is really another run with the same sort of questions. For
example, the Older Persons Commissioner in Wales will not be able
to consider pensions and welfare payments, which are obviously
very closely bound up with the whole of the rest of their lives.
What sort of consideration has been given to that element?
Mr Touhig: I think that is a very
big area and important area. We could be rehearsing the discussions
we had about the powers in the Children Bill but there is nothing
under our proposals preventing the Older People's Commissioner
from looking into the matters you raise. He or she would make
representations to the Assembly and the Assembly would make a
judgment whether it felt that it needed to take these matters
up with the respective department here in London. With the Children's
Commissioner, the Secretary of State and I have offered to Peter
Clarke that if there are any matters that impinge upon reserved
areas that he feels should be brought to the attention of ministers
or departments here in London, then feel free to speak to the
Secretary of State or myself and meet us and we will undertake
to take up these matters. We have already done so in one case.
I know this caused a lot of concern and discussion at the time
when we talked about the Children Bill, but in practice there
have not been a great many instances where the Children's Commissioner
has been inhibited in any way from carrying out his functions
and we certainly have no intention in this piece of legislation
to put in any barriers and we hope it would work exactly the same
as with the Children's Commissioner.
Q12 Julie Morgan: So access to ministers
would be in an informal way rather than being in the draft Bill?
Mr Touhig: It is not in the draft
Bill. The Government has made it clear, as it did with the Children
Bill, that matters which are reserved remain the responsibility
of ministers here in London and ministers here are answerable
to Parliament and thereby accountable for those matters. We did
not think it was appropriate for Commissioners answerable
to devolved administrations to be able to investigate matters
which were the responsibility of ministers here in London. However,
I want to make it clear that with the Children's Commissioner
he is able to look at any matter and ask the Assembly if he or
she feels there is an issue that the Government needs to take
account of to raise it. As I say, the offer was made to the Children's
Commissioner that the Secretary of State was happy to take things
up. In the wider context can I say this: I recognise there are
going to be contrary views. After you deliberate you might have
a contrary view, as you did over the issue in the Children Bill.
Of course, I will be having discussions with my colleague ministers
and the Assembly ministers about the draft Bill and you will produce
a report at some stage and others will comment on the draft Bill.
That information and those reports will inform our decisions when
we produce the final Bill. I think these matters are open to discussion.
I have painted the picture of where the Government line is at
the moment and I do not anticipate that would move significantly
in any way but we do think it is important as part of the pre-leg—and
that is the whole purpose of a draft Bill—that you are going
to get contrary views to what we have got in the Bill, and we
need to consider that, working with colleague ministers in the
Assembly before we produce the final Bill.
Q13 Julie Morgan: And the Explanatory
Notes to the draft Bill state that the Commissioner would be able
to "keep under review the adequacy and effectiveness of law
affecting the interests of older people in Wales". How would
that actually happen if he or she is excluded from considering
any legislation passed and administered by the UK Government or
are you saying they are not excluded?
Mr Touhig: As with the Children's
Commissioner, the intention is that the Older People's Commissioner
will be able to look at any matter which he or she thinks impacts
on the quality of life or issues that I have outlined affecting
older people in Wales. He or she would then if it were a devolved
matter work directly to the Assembly and say there is an issue
that ought to be looked at. If it is a reserved matter he or she
would go to the Assembly and say, "I have come across this
matter (let's say affecting pensions or some such thing) there
is a problem and I find there is a failure of the system somewhere
here. Would you raise that with the respective department in Whitehall?"
And then the Assembly will take a judgment on whether it should
or whether it should not. As I say, the Secretary of State has
made it clear to the existing Children's Commissioner that our
door is open if there are matters that he feels we need to bring
to the attention of other ministers here. If I recall, we amended
the legislation on the Children's Commissioner in order to give
that power to look at any matter—
Q14 Julie Morgan: —Yes you did,
that is right.
Mr Touhig: —when we did
the Bill some years ago. So we are not seeking to put any difficulties
in the way there. Operationally it seems to work. We are not aware,
Chairman, of any serious problems that exist at the moment
with the Children's Commissioner that we have not been able to
resolve and I would hope that the same would apply now with the
Older People's Commissioner, but again it is a draft Bill and
people will have different views to what we put in the Bill and
we will have to consider those views before we produce a final
Bill.
Q15 Mr Caton: Can we move on to an apparent
overlap with the role of the Public Services Ombudsman that you
have already mentioned, Minister. The Older People's Commissioner
will have powers over health and housing and can take up complaints
in these areas. However, there will also be a Public Services
Ombudsman for Wales. What form of health and housing complaints
could the Older People's Commissioner consider that could not
be considered by the other ombudsman?
Mr Touhig: The draft Bill makes
provisions under clause 15 and prevents the Commissioner from
discharging a function that is also dischargeable under statute
by another prescribed person like a Commissioner or Ombudsman.
He would not be able to look into areas where Parliament has already
decided that that is the orbit of that particular Ombudsman and
so on. In fact, it is intended that working arrangements between
the Commissioner and other bodies operating in the same sphere—and
there is bound to be an overlap as we have seen on the Children
Bill—they should be underpinned by a working level memorandum
of understanding setting out their respective roles. This is in
line with the operation of the Children's Commissioner in Wales.
If an element of a complaint falls within the remit of another
Commissioner or Ombudsman, for example the Public Services Ombudsman,
the Commissioner for Older People will transfer the element of
that complaint that relates to maladministration to the Ombudsman
and could assist the older person in pursuing that complaint through
the existing complaints procedure. So if it was not really within
the remit of the Older People's Commissioner but an Ombudsman
matter, it would refer it to the Ombudsman but the Commissioner
should still give that older person help and assistance in taking
that matter to the Ombudsman and getting it investigated. There
will be a degree of overlap but we have found, as we did on various
health matters working closely with colleagues in Cardiff, that
the memorandum of understanding has provided a good basis on various
health matters like CHI and the Health Service Inspection Unit
in Wales and that it can be made to work very effectively because
there will be areas where there will be considerable overlap.
Q16 Mrs Williiams: I would like to ask
a question on clause 8. Clause 8 states that "to a person
who has been an older person in Wales includes a person who has
ceased to be an older person in Wales before this section comes
into force." Does this mean that the Commissioner can champion
the case of Welsh older people who reside outside of Wales? Is
that restricted to their time in Wales or can he continue to represent
them while they are in England?
Mr Touhig: After consideration
of all the issues and options, the draft Bill proposed, as I said,
the lower age limit in the definition of older people as 60 and
over, and it corresponds to the various benchmarks that I referred
to. The Bill contains provision for the Commissioner in connection
with his powers of assistance (clause 8) and the examination of
cases (clause 9) to help those who have been an older person in
Wales but are no longer in Wales as well as those who were older
people Wales at the time when the Bill came into force. This would
enable the Commissioner to help those who may have moved away
but did experience problems with a service while they were resident
in Wales. If someone who has had a problem with the service when
they lived in Wales but has moved outside Wales, the Commissioner
would be in a position to look at that matter. Also in connection
with his or her powers of examination it would be for him or her
to consider details relating to individuals who have since passed
away but whose cases and experience have come to light and in
his consideration merit examination. Someone might have died and
there may be an issue in terms of the care provision, whatever
it may be, within Wales and the Commissioner would be in a position
to look at these matters.
Q17 Mrs Williiams: Can you remind me
again which clause is the one you referred to if a person has
died?
Mr Touhig: Clause 9(1). "Regulations
may make provision for examination by the Commissioner of the
cases of particular persons who are or have been older people
in Wales in connection with the Commissioner's functions under
the Act." That would permit him to do that.
Q18 Mr Edwards: Can I ask about financial
support. Clause 8(4) states that the Commissioner will be able
to provide financial assistance to older people. Will this include
financial assistance for professional representation and how will
that financial assistance be determined? Would you envisage it
would be means tested?
Mr Touhig: The Assembly will provide
the Commissioner's funding and will negotiate with the Commissioner
a budget and forward work programme on an annual basis. The cost
of financial support will be met from within the Commissioner's
budget. In setting his forward work programme and budget, a discrete
resource will need to be identified for meeting the costs of financial
support and assistance. However, the Commissioner will need to
be selective and consider cases in which there are wider matters
of concern at stake or where precedents are being set. We would
not envisage that this would present a significant case load for
the Commissioner. This will be an operational matter for the Commissioner
to consider once appointed. By secondary legislation the Assembly
will make regulations in which it will then set out the criteria
for giving support and considering cases and set out a series
of guidelines in which people can then understand what they can
apply for and what they can gain in support. However, it is the
intention that the Commissioner will be able, within the budget
to be agreed and determined, to give financial support if someone
feels that they need to take some legal action. If the Commission
supports that they should take some legal action the Commission
will be in a position to support that. It will be, really, a matter
for the Assembly to determine the regulations by which the Commissioner
would work.
Q19 Mr Edwards: The Explanatory Notes
of the Bill say that in the first year the costs will be £1.5
million. Would you envisage that some financial support will come
within that?
Mr Touhig: At this stage and before
we know the extent of the role and responsibilities of the Commissioner
it is not possible to give a detailed breakdown of the costs.
The estimated costs you have got in the Explanatory Notes are
based on our knowledge and experience of running the Office of
the Children's Commissioner in Wales, and the breakdown of the
costs relating to the Children's Commissioner is provided each
year in his annual report. In the most recent estimates of expenditure
for 04/05, in which there is a predicated budget of £1.6
million, of which £134,000 is programme costs and £1.2
million organisational costs, there is also funding put aside
for research and examination . The costs of assistance are included
within the estimated costs of the Commissioner's office. The two
additional Assembly posts are based on experience in similar areas
where some input at middle and junior management level is required
to act as government liaison with the Office of the Commissioner.
In practice, of course, these may well not be full-time posts
but at this stage until we finalise the exact details of the responsibilities
of the Commissioner the budget is set there and is more of a guesstimate
than anything that we could be firm on.
Mr Williams: It is a best guess
estimate, but the work of the Children's Commissioner is regarded
as relatively analogous to the sort of work the Older People's
Commissioner will be doing and, therefore, that was seen as the
best bench mark that we had to hand to make an estimate of the
costs of the Older People's Commissioner.
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