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The amendment raises a valid concern, although it goes very much against the grain of our debates on Second Reading and in Committee on protecting the commissioner’s independence. Whether it is a probing amendment or a matter that may be carried further, it raises a valid point on how we ensure that the dividing line between legitimate lobbying groups, such as Age
Concern Cymru and Help the Aged Cymru, and the commissioner is taken into consideration. How does the Minister envisage the commissioner working with groups such as those to protect the commissioner’s independence?
Adam Price (Carmarthen, East and Dinefwr) (PC): I welcome the interest shown by the right hon. Member for East Yorkshire (Mr. Knight) in the effective working of the Bill. Despite my fears about the growing one-party state that we may or may not have in Wales, I cannot imagine circumstances in which a commissioner would sensibly commission research from the Labour party research department. The Conservative party, of course, appears no longer to have a research department, following the announcement a few days ago. I understand the intention behind the amendment and will be interested to hear what the Minister has to say.
I offer a little caution, however. I am not sure whether the amendment, in seeking to ensure the independence of the commissioner, might not actually lead to the commissioner being somewhat circumscribed in his ability to look legitimately not at areas of policy debate—which, as the right hon. Gentleman said, is clearly and rightly the remit of the elected members of the National Assembly—but at grey areas between policy and delivery and how a policy is carried out or what model of delivery is used. Those are legitimate areas where the commissioner could commission research and create a debate, which would of course eventually be resolved by the elected representatives in the National Assembly. I understand the intention, but I am not sure that the amendment would not lead us down a road that would create additional problems.
Mrs. Gillan: Although my name is not attached to the amendment, I shall be interested to hear what the Minister has to say. Both in this Bill and in the Government of Wales Bill there are widely drawn powers of patronage and financial assistance that, in this case, the commissioner—the Assembly Ministers in the case of the Government of Wales Bill—can use to disburse funds to any organisation and to anybody at any time. The amendment strikes me as sensible in ensuring that we have a discussion because yesterday, in discussion of the Government of Wales Bill, a piece of Labour-sponsored, Labour-bought research from the Bevan Foundation was prayed in aid to support it. It is not, then, outwith the possibilities that individuals in Wales, which certainly is not going to remain a one-party state for any length of time, could commission materials for political purposes. For example, the commissioner could ask the Labour party research department or researchers to produce information on older people as members of the Labour party itself. We would not want to see funds flowing from the taxpayer into the back pocket of the Labour party in that sense. The Minister’s response will be interesting.
I am glad that my right hon. Friend the Member for East Yorkshire (Mr. Knight), who takes a great interest in these matters, tabled the amendment so that the Minister can give us his full interpretation of the clause. The Opposition always try to work constructively and if the amendment can improve the legislation I shall be only too happy if the Minister adopts it, or proposes one of his own, to ensure that we have the right protection for taxpayers’ money.
5.45 pm
Nick Ainger: The amendment would restrict the commissioner’s ability to provide assistance for undertaking research or educational activities in circumstances where the resultant research or education might challenge the policies of the Assembly Government or involve the commissioner in supporting political lobbying.
We cannot accept the amendment. We are clear about the necessity for the commissioner to be independent of the Assembly Government, and for him to be able to exercise his functions without being constrained in the way proposed—the point to which the hon. Member for Carmarthen, East and Dinefwr (Adam Price) referred. It will, therefore, be for the commissioner to act as he thinks appropriate and to defend his actions, if necessary, consistent with his powers.
By establishing the commissioner, the Government and the Assembly seek to raise standards and to ensure that a wide range of public bodies, the Assembly included, work to respond to the wishes and needs of older people in Wales. It is thus imperative that the policy and operational decisions of the Assembly Government can be challenged by the commissioner if he considers that they are not in the interests of older people in Wales. For instance, the commissioner might want to review the Assembly Government’s discharge of their functions in a particular matter, or review the adequacy of legislation they have made. He might want to suggest an alternative policy objective in a particular area by means of a representation on the subject. The ability to undertake or commission research and educational activities will be an important tool in enabling him or her to do that.
The commissioner will be able to fund research or educational activities only in support of his other functions in the Bill and in the interests of older people in Wales. Funding of party political activities would clearly fall outside the commissioner’s remit.
Restricting the commissioner’s ability to fund research undertaken by bodies that are also engaged in “political lobbying” is, we think, a step too far.
In our debate on amendment No. 1, we talked about the involvement of organisations such as the Royal National Institute of the Blind and the Guide Dogs for the Blind Association, and I am sure that Members would not want the commissioner to be precluded from providing funding to respected bodies, such as Help the Aged or Guide Dogs for the Blind, to undertake a research project simply because they also engage in lobbying the Government and the Assembly Government about policies they consider would benefit older people in Wales.
David T.C. Davies (Monmouth) (Con): No one would want research of that nature restricted, but the amendment is not about restricting or preventing research; it is about making sure that the rules for conducting research are open and transparent.
Nick Ainger: Absolutely. In our debates, nobody has questioned the fact that the commissioner should be open and transparent. The commissioner should be independent both of any political influence and of the Assembly as a whole, and should be able to commission research that he or she feels necessary to work as a champion for older people in Wales.
Mr. Stephen Crabb (Preseli Pembrokeshire) (Con): Does the Minister think it legitimate for an unelected commissioner to campaign against policy priorities set by democratically elected politicians, as, for example, the Children’s Commissioner is campaigning against antisocial behaviour orders, saying that they are ineffective and inappropriate for under-18-year-olds in Wales?
Nick Ainger: I am not sure that it is fair to characterise the Children's Commissioner as campaigning against—
Nick Ainger: Let me finish the point. I am not sure that it is fair to characterise the Children's Commissioner as campaigning against antisocial behaviour orders in general. I have seen some of the comments that have been made. They are certainly not a blanket rejection of the concept of antisocial behaviour orders. The commissioner takes the view that those should be a last resort. I do not recognise that as a campaign against antisocial behaviour orders. Does the hon. Gentleman still wish to intervene?
Nick Ainger: I think that I have covered the point that the hon. Member for Ceredigion (Mark Williams) raised. A number of organisations will have already carried out research, including Help the Aged, Age Concern and charities that look after the interests of disabled people. The fear is that if the amendment were accepted, the commissioner would be precluded from asking those organisations, which are effective lobbyists of Government at all levels, for help and information.
It needs to be emphasised that the commissioner is there to do a clear job: to scrutinise the work of local authorities and the Assembly. The fear is that the amendment could constrain him from doing that work. Therefore, I ask the right hon. Member for East Yorkshire (Mr. Knight), although I understand his concern and the need to throw some light on the issue, to withdraw the amendment.
Mr. Greg Knight: We have had an interesting debate. I assure the hon. Member for Carmarthen, East and Dinefwr (Adam Price) that my interest in Wales is of long standing, although, because of my other duties, regrettably it has been intermittent.
This issue involves a fine balance. I am not entirely convinced by what the Minister has said, but I accept that there is some force in his argument that one does not want to over-fetter the commissioner, particularly if he uncovers something that he regards as in serious need of addressing which the Assembly is not addressing and he wants to devote some research to it. I see the other side of the coin.
Conservative Members will keep an eye on the issue and on what the commissioner gets up to. If we feel at any stage that he is exceeding his remit or using the powers unfairly or unreasonably, I promise that we will be back on this very issue. With that indication, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Greg Knight: I beg to move amendment No. 3, in page 8, line 25, at end insert ‘with or without notice.’.
This is in essence a probing amendment that is aimed at teasing out from the Minister exactly how he sees the commissioner exercising his powers. Of course, all interviews with older people should be conducted with sensitivity and compassion. Such interviews should always be with the consent of the older person, as the Bill recognises. In addition, if that older person wishes someone else to be present when an interview is taking place, that request should be accommodated.
The timing of a visit is important, too. The Bill accepts that by saying that a visit should always take place at a reasonable time. I hope that that is a subjective test, so that it is a reasonable time for the older person, not a young member of the commissioner’s staff. However, I fear that there are cases in which it is inappropriate to provide notice of a visit. There is a risk that before a visit an older person will be subject to duress by someone who does not want a complaint to be pursued. That person may put pressure on them and instruct them not to say anything during a visit, because they do not want them to rock the boat. Such arm twisting may occur and, in some cases, there may be more serious threats or unpleasant reprisals if the older person speaks out.
The commissioner should have the power to arrive unannounced if he deems it appropriate to do so. As I said, the Bill acknowledges that the older person can refuse a visit, but the amendment would prevent someone of less than benign intent from having the opportunity to bamboozle them or subject them to duress before a visit. En passant, new clause 1 has not been selected because I failed to table it in time, but its powers go wider than the amendment as there is an even stronger case for the commissioner to make an unannounced visit when premises are being inspected. We all know the story of the hospital that is to be visited by the Queen—it gets a lick of paint and everything is perfect on the day before it goes back to the way in which it usually operates. Similarly, that happens with organisations and establishments that look after older people. If they know that a VIP is coming, they change things for the duration of the visit. The commissioner should have power across the board to make unannounced visits. If the Minister does not accept the amendment, I hope that he envisages that the commissioner will have those powers in any event.
Nick Ainger:
The amendment seeks to make explicit the provision that the commissioner, or someone authorised by him, may enter premises to interview an older person either with or without notice. It is not necessary, because the Bill already allows the commissioner flexibility in the matter. We accept that there may be occasions on which, because of the nature of the concerns or allegations about which the commissioner wishes to interview an older person, he wishes make an unannounced visit. The right hon. Member for East Yorkshire (Mr. Knight) failed to table new clause 1 in time, but he alluded to the need to give the commissioner greater powers on entry and inspection. It is not appropriate to give powers for entry and inspection to the commissioner, as that is the
responsibility of the Care Standards Inspectorate for Wales. If a complaint was received by the commissioner and an older person was at risk, he would immediately contact the inspectorate and, depending on the nature of the threat, police and social services, which have the necessary power of entry. It is for those authorities to make an unannounced visit to investigate the complaint.
Mr. Knight: The Minister said that the powers were already in the Bill. Does he mean that they are written into the Bill, and if so, could he direct the House to where they are, or does he mean that he envisages the powers being included in some regulations or rules that are to be introduced?
Nick Ainger: I am assured that the powers are in the Bill. I cannot direct the right hon. Gentleman to the exact clause, but the commissioner has the power to enter premises—not private premises, but premises where care is provided, and so on—[ Interruption.] I am advised that the relevant clause is clause 13. I should have read on in my notes. Clause 13 places no requirement on the commissioner to give notice of his intention to enter to interview, but leaves that to his discretion depending on the circumstances.
Mr. David Jones (Clwyd, West) (Con): I take the Minister’s point. I was concerned about the amendment tabled by my right hon. Friend the Member for East Yorkshire (Mr. Knight) because it seemed to me that that was properly the purview of the Care Standards Inspectorate. The Minister will recall that on Second Reading I raised the matter with him. It seems to me that, to a large extent, in this area the powers of the commissioner cut across those of the Care Standards Inspectorate. Is it therefore anticipated that the rules that will be made governing the activities of the commissioner with clarify his relationship with the Care Standards Inspectorate?
Nick Ainger: There are two distinct roles. If there is a complaint by an older person in a care home about the conditions, the care that he or she has been receiving or poor standards in the home, or an allegation of elder abuse, that complaint may initially go to the commissioner, but I should have thought that if it is an issue of abuse, the police should be involved. If the complaint is about the standard of care or the quality of the home, that should be addressed immediately by the Care Standards Inspectorate. The interview that we are discussing relates to a wider complaint that may be made by an older person. I do not think there is a blurring of powers. With that explanation, I ask the right hon. Member for East Yorkshire kindly to withdraw his amendment.
Mr. Knight: The Minister referred me to clause 13, but that is silent on whether the power of entry or of interviewing may be exercised with or without notice, so I can only conclude that he is saying that the silence gives consent. I accept his interpretation.
My concern is that duress is an easy weapon to use on people—not physical duress particularly, but mental duress. I have seen it all too often in cases that were brought before me when I used to practise law, and anything that we can do to stamp it out should have
support from every corner of the House. I am therefore pleased that the commissioner will have the power to enter premises other than a private home without giving notice. Without such a power, he would not be able to fulfil his job properly. On the basis of the reassurances that the Minister has given us today—
Mr. Christopher Chope (Christchurch) (Con): Before my right hon. Friend gets carried away with his rhetoric about how wonderful the provision is, does he accept that it is confined to the power to enter premises for the specific purpose of interviewing somebody in those premises, not to carry out a general investigation?
Mr. Knight: I accept entirely what my hon. Friend says, but a full-blown investigation may often start from evidence that is given in a one-to-one interview. That is why it is important that when an interview takes place, the older person is willing and able to tell the truth without fear of any reprisals. Today, the Minister has assured us that the Bill allows the commissioner to do so without my amendment, and I am prepared to take him at his word.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.4 pm
Nick Ainger: I beg to move, That the Bill be now read the Third time.
The Bill received its Second Reading on 15 June, and it was considered in Standing Committee on 27 June. It is a groundbreaking piece of legislation that enables the National Assembly to set up an independent champion for older people, who will play a vital role in addressing ageism and discrimination against older people.
As my right hon. Friend the Secretary of State for Wales noted in opening the debate on Second Reading, the position will be the first of its kind in the UK and, indeed, possibly the world. The Bill is another milestone in our commitment to older people in Wales. The commissioner will be able to speak up on behalf of older people in Wales, helping to raise their profile and increase awareness of their needs.
The policy originated with older people themselves and their representatives, and it is firmly evidence-based. The report of the Assembly Government’s expert advisory group, “When I'm 64...and more”, recommended the establishment of a commissioner for older people. The policy became a key commitment in the Welsh Labour manifesto for the 2003 Assembly elections. The draft Commissioner for Older People (Wales) Bill was published in March last year and distributed to more than 2,000 stakeholders across Wales. The responses again demonstrated that there is a great deal of support for the proposals, with no fewer than 94 per cent. of respondents in favour of the establishment of the commissioner.
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