Clause 16: Working jointly with the Public Services Ombudsman for Wales

42.     This clause makes provision for the Commissioner to work jointly with the Public Services Ombudsman for Wales (the "PSOW") where there is an overlap in their investigatory functions. Subsection (1) provides for the power to work jointly to apply in circumstances where the Commissioner is entitled to examine a particular case of an older person in Wales that could also be the subject of an investigation by the PSOW. Where this circumstance occurs, subsection (2) requires the Commissioner to inform and consult with the PSOW about the case, where he considers it appropriate. Once the Commissioner has consulted the PSOW about a case, subsection (3) provides that both the Commissioner and the PSOW are given the power to co-operate with each other in relation to the case. This may involve conducting a joint examination and preparing and publishing a joint report on their findings.

43.     Subsections (4) and (5) provide the Assembly with an order-making power to apply the joint working provisions in this clause to other commissioners and ombudsmen with whom, in the future, there may be an overlap in functions. The Assembly must consult with the Commissioner (and any other appropriate persons, which it is anticipated would include the other commissioner or ombudsman) before making such an order.

Clause 17: Working collaboratively with other ombudsmen

44.     This clause makes provision for the Commissioner to work collaboratively with other ombudsmen where there is no overlap in their functions but where a case raises matters that could be the subject of investigation by both office-holders. Subsection (6) specifies that, for the purposes of this clause, other ombudsmen are the PSOW and the Children's Commissioner for Wales.

45.     Subsection (1) provides that the power to work collaboratively shall apply where the Commissioner is examining, or considering whether to examine, a case that relates to, or raises an issue, which could be the subject of an investigation by the Children's Commissioner for Wales or the PSOW (a "connected matter").

46.     Subsection (2) requires the Commissioner to inform the Children's Commissioner for Wales or the PSOW about a connected matter that he has identified, where he considers it appropriate. Subsection (3) provides that where the Commissioner considers that a case raises both a connected matter and a matter that he is entitled to examine (an "older people matter"), he is required to inform and consult with the Children's Commissioner for Wales or the PSOW on his proposals to undertake an examination, where he considers it appropriate.

47.     Subsection (4) enables the Commissioner and the Children's Commissioner for Wales or the PSOW to co-operate with each other in relation to their separate investigations, to act together in the investigation of the matters raised by the case, and to prepare and publish a joint report containing their respective conclusions. Subsection (5) requires the Commissioner, where he identifies a case that raises a connected matter but not an older people matter, and he considers it appropriate, to inform the aggrieved person (or another person involved in that case) about how to refer the matter to the correct person.

48.     Subsections (8) and (9) provide the Assembly with an order-making power to apply the collaborative working provisions in this clause to other commissioners and ombudsmen for whom, in the future, such arrangements may be appropriate. The Assembly must consult with the Commissioner (and any other appropriate persons, which it is anticipated would include the other commissioner or ombudsman) before making such an order.

Clause 18: Power to disclose information

49.     Subsections (1) to (3) place a duty upon the Commissioner not to disclose information obtained by him in the discharge of his functions, or from other commissioners or ombudsmen, other than for the purposes specified in subsection (3). These include disclosure to other commissioners, ombudsmen, or public bodies (defined as "permitted persons" in subsection (9)) if it is in the public interest and for the purpose of the discharge of that permitted person's functions (subsection (3)(b)). There is also a "sunset provision" that enables the Commissioner to disclose information obtained by him more than 70 years before the proposed date of disclosure, if he considers its disclosure to be in the public interest (subsection (3)(h)). Subsection (5) provides that, in determining whether disclosure is in the public interest, the Commissioner must take into account the interests of the person to whom the information relates and such other persons as he thinks appropriate.

50.     Subsection (10) provides the Assembly with a power to add to the list of permitted persons, or omit or change the description of a person. This could be used, for example, to accommodate the creation of a new ombudsman with whom it may be appropriate for the Commissioner to share information.

Clause 19: Protection against defamation

51.     Subsection (1) provides that, for the purposes of the law of defamation, the following are absolutely privileged: (a) the Commissioner's reports, (b) information disclosed by the Commissioner to the PSOW, the Children's Commissioner for Wales or any other ombudsman with whom the Commissioner may co-operate, for the purposes of discharging any of the Commissioner's functions, and (c) communications from the Commissioner to persons listed in subsection (3) in connection with the examination by him of an individual's case. Absolute privilege provides a complete defence to defamation proceedings.

52.     Subsection (2) provides that, for the purposes of the law of defamation, communications from persons listed in subsection (3) to the Commissioner in connection with the examination of a case have qualified privilege. Qualified privilege will not prevent a person bringing defamation proceedings. However, it will provide a conditional defence against such proceedings. The persons listed in subsection (3) are: the person whose case is being examined, the person whose conduct is the subject of the examination, any person with whom the Commissioner is communicating for the purposes of obtaining information about the case and any person acting on behalf of any of these.

Clause 20: Complaints procedure in respect of the Commissioner

53.     Subsection (1) provides that the Commissioner must establish a complaints procedure for dealing with complaints made about the discharge of his functions. Subsection (2) provides that the procedure must include details of how a complaint may be made, the person to whom a complaint may be made, the timescales in which complaints will be considered, and action that the Commissioner must consider taking in response.

54.     Subsection (3) gives the Commissioner a power to amend or update the complaints procedure. Subsections (4) and (5) provide the Commissioner with a duty to consult and obtain the approval of the Assembly before establishing or amending the complaints procedure, and to send a copy of the procedure to the Assembly.

Clause 21: Restrictions

55.     Subsection (1) prevents the Commissioner from discharging any of his functions in relation to any matter that is or has been the subject of legal proceedings before a court or tribunal. Subsection (2) precludes the Commissioner from exercising any prescribed function, which is dischargeable under statute by another prescribed person or body.

Clause 22: Minor and consequential amendments

56.     This clause gives effect to Schedule 4 which makes minor and consequential amendments in relation to the Commissioner's powers to work with other commissioners and ombudsmen (as provided for in Clauses 16 and 17).

Schedule 4: Minor and consequential amendments

57.     Paragraph 1 amends the Care Standards Act 2000 by inserting new section 75ZA, which mirrors Clause 17 of the Bill. This gives the Children's Commissioner for Wales reciprocal powers to work collaboratively with the Commissioner.

58.     Paragraph 2 amends the Public Services Ombudsman (Wales) Act 2005. It inserts new sections 25A and 25B into that Act, which mirror Clauses 16 and 17, respectively, of the Bill. They give PSOW reciprocal powers to work jointly and collaboratively with the Commissioner.

Clause 23: Commencement

     59.     Clauses 1 to 22 of (and so Schedules 1 to 4 to) the Bill will be brought into force on such a date or dates as determined by the Assembly by order. The remaining provisions will come into force on Royal Assent.

Clause 24: Older People in Wales

60.     An older person in Wales is defined for the purposes of the Bill as a person who is aged 60 or over and who satisfies at least one of the following criteria: (a) he is ordinarily resident in Wales; (b) he is receiving a regulated service in Wales; or (c) he is receiving relevant services (as defined in Clause (6)(4)) from, or on behalf of, or under arrangements with, any of the persons listed in schedule 3.

Clause 25: Interests of older people in Wales

     61.      In considering what constitutes the interests of older people in Wales for the purposes of the Bill, the Commissioner must have regard to the United Nations Principles for Older Persons.

Clause 26: Regulated services in Wales

     62.     Subsections (2) to (4) define the term "regulated services in Wales" and provide clarification as to who is to be treated as the provider of particular regulated services.

Clause 27: Other interpretative provisions

63.     Subsection (1) provides certain definitions for the Bill. Subsections (2) and (3) provide a power for the Assembly to amend, by order, the definitions of 'family health service provider in Wales' and 'independent provider in Wales' after consulting with such persons as it thinks appropriate.

Clause 28: Orders and regulations

64.     Subsection (1) provides that, where the Assembly is empowered by the Bill to make orders or regulations, these are to be made by statutory instrument. Subsection (2) provides that such orders or regulations may make different provision for different purposes and may include incidental, supplemental, consequential, transitory or saving provision. Subsection (6) provides that any order or regulations made by the Assembly under the Bill are to be regarded as general subordinate legislation. Any such orders or regulations will, therefore, be subject to the Assembly's subordinate legislation procedures.

65.     Subsection (3) enables the Assembly to make, by order, consequential amendments to the legislation relating to other commissioners and ombudsmen that are added to, or removed from, the list of persons with whom the Commissioner may work jointly or collaboratively (provided for in Clauses 16(4) and 17(8) respectively). Subsection (4(a)) places the Assembly under a duty to obtain the prior consent of a Northern Ireland department if the order confers functions on a person which relate wholly or partly to a transferred matter (i.e. a matter within the competence of the Northern Ireland Assembly). Subsection (4)(b) places the Assembly under a duty to obtain the prior consent of the Secretary of State if the function relates to a matter in a field in which the Assembly does not have functions to the extent that the matter is not a transferred matter. This power does not enable the Assembly to make any amendments to Scottish legislation.

Clause 29: Extent

66.     The Bill principally extends to England and Wales only but amends certain primary legislation which extends to the United Kingdom. Clause 28 of the Bill also extends to Northern Ireland. However, in practice the effect of the Bill's application is largely confined to Wales.

FINANCIAL EFFECTS

67.     The establishment of the Commissioner will necessitate initial expenditure in terms of premises and associated capital resources. Further expenditure will be required in terms of salary costs in respect of the Commissioner and support staff to assist him in the exercise of his functions. The costs of these provisions are subject to more detailed work, but are currently estimated at around £500,000 for start up costs and £ 1.5 million for running costs in the first full year of operation. These costs will be borne from funding provided by the Assembly.

PUBLIC SERVICE MANPOWER

68.     It is anticipated that the office of the Commissioner will be of similar size to that of the Children's Commissioner for Wales, which currently has 30 staff. The additional powers conferred by the Bill on the Assembly would require the creation of two additional posts within the Assembly Government administration.

SUMMARY OF THE REGULATORY IMPACT ASSESSMENT

69.     The Regulatory Impact Assessment for the Bill concluded that the legislation would have a negligible impact on charities and the voluntary sector and none on small business. The Bill has no competition implication and does not affect any particular market or businesses.

70.     A copy of the full Regulatory Impact Assessment is available on the website of the Welsh Assembly Government at: www.wales.gov.uk/subicommolderpeople/index.htm

EUROPEAN CONVENTION ON HUMAN RIGHTS

71.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement before the Second Reading about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). Peter Hain, Secretary of State for Wales, has made the following statement under section 19(1)(a) of that Act:

     "In my view the provisions of the Commissioner for Older People (Wales) Bill are compatible with the Convention Rights."

COMMENCEMENT

72.     The Bill provides that clauses 2 to 22 would be brought into force in accordance with provision made by the Assembly by commencement order. It is intended that such an order will be made in 2006 or 2007. The remaining provisions (largely interpretative) would come into force on Royal Assent.